
Rnnk ■■ /i/ 7\ y 



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THE 



-«GREAT LIBEL CASE 



//• ■• 



GEO. OPDYKE <'^- THURLOW WEED. 



A FULL REPORT OP THE. 



SPEECHES OF COUNSEL, TESTIMONY, ETC., ETC. 



NEW YORK: 
THE AMBKICAN NEWS COMPANY, 

No. 131 Nassau Stkeet; 
1865. 



.r". 



Vf3 7 



• .or 



PRESS OP WYNKOOP & HALLENBEGK, 
No. 113 FoLTON- Stkeet, N. T. 



£/ 



THE GREAT LIBEL SUIT. 



OEOROE OPDYKE agst. THURIiOHr IVEED. 

Before Judge Mason and a Juiy. 



FIRST DAY. 

/ TUESDAY, DECEMBER 13tH, 1864. 

This case came on for trial to-day. The Court room was quite full. David 
Dudley Field and ex-Judge Emott appeared as counsel for the plaintiff, and Wm. 
M. EvARTS and Edwards Pierrepont for defendant. 

EMPANNELINa THE JURY. 

Mr. Opdyke was early in attendance, and arrived in company with his counsel, 
David Dudley Field, ex-Judge Emott, and William F. Opdyke. The defendant, 
Mr. Weed, did not arrive until the calendar lyas called. He took a seat beside his 
counsel, William M. Evarts, ex-Judge Pierrepont, and E. M. Blatchford, and looked 
remarkably well. The calendar having been disposed of, the Court inquired if the 
counsel were ready to proceed. 

Mr. Evarts — I suppose we shall be ready to proceed with the trial. I have a 
long list of witnesses, and cannot tell who are present unless the clerk calls off the 
names. For such of the witnesses as are absent I shall move for attachment. 

Judge Mason — Well, enter them all in one order. 

The first juror called was Charles B. Cornell. 

Mr. Evarts— This is a suit for libel, Mr. Cornell ; do you know anything about 
the case ? A. No, sir. 

Q. Formed no opinion? A. No, sir; I know nothing about it, except what I 
saw in the newspapers. 

Q. Do you know either of the parties ? A. I may have seen Mr. Opdyke, but 
beyond that I have no acquaintance with either of them. 

Mr. Evarts — We have no objection to the juror. 

Berman CusniNG stated that he had heard of the case before ; saw something 
about it in the newspapers ; had formed no opinion in regard to the matter ; con- 
sidered himself an impartial juror, and fully competent to render a true verdict ac- 
cording to the evidence. (Objection to the juror withdrawn.) 

Thomas Warren had not formed any opinion in regard. to the case, and could 
give an impartial verdict. (Objection withdrawn.) 

Benjamin Wat knew nothing about the case, except what he saw in the news- 
papers, and had formed no opinion, knew neither of the parties. (Objection with- 
drawn.) 

Thomas J. Wayne, Jr. , had heard of the case politically ; had formed no more 
opinion on this subject than he had on any political matter. 



Q. What is the opinion you have formed? A. I don't know that I am called 
upon to state. 

Judge Mason — You certainly'are. 

JuKOR — Well, I think my mind is biased. 

Judge Mason — The juror can stand aside. 

Augustus F. Mullee, knew neither of the parti* ; had not formed or expressed 
any opinion in regard to the matter. (Objection withdrawn.) 

John T. Seaman and Hans J. Hansen knew nothing about the case and were 
without any opinion on the subject. (Objection in each case withdrawn.) 

William Holden liad read something about the case, but had not formed any 
opinion ; had read something in the Sun, but did not remember what it was exactly. 
(Objection withdrawn.) 

G-EOEGE E. Harrison had heard of the case before, and would rather be excused 
from sitting on the jury : he had read all the correspondence and considered him- 
self rather biased on the matter. (Excused .) 

Henry Harris and Bernard Kilduff were then examined, but never having 
expressed an opinion they were accepted as jurors. 

Samuel C. Dana thought he was somewhat biased on the subject, and was ex- 
cused by the court. 

John Drinker and H. K. Ball were both without prejudice, never having 
formed nor expressed an opinion. 

(Objection withdrawn in each case.) 

Mr. Evarts — We shall now exercise the right of peremptory challenge. Mr. 
Clark, will you be good enough to draw' other names instead of Messrs. Kilduff 
and Seaman ? 

Marcus Klinger was drawn in place of Mr. Kilduff, and upon being questioned 
proved satisfactory to both parties. 

Philip Van Valkenburg was then called to supply the place of Mr. Seaman . 

Me. Field— Do you know either of the parties in this suit ? A. I know them by 
sight. 

Q. Have you any particular bias in this case ? A . No, sir. 

Q. Have you had any business with either of the parties ? A. I have not. 

Q. Do you know Rantz Van Valkenburg ? A. I do not. 

Mr. EvARTS — What is your business? A. Drygoods jobber. ' 

Q. Are you not acquainted with Mr. Opdyke ? A. No, sir ; except by sight. 

Q. Do you know nothing about this suit ? A. I have heard it talked about. 

Q. Tbu have probably talked about it, too ? A. I have to one or two in the 
store. 

Q. Have you not formed some opinion ? A. No. 

Q. You were interested enough in the case to talk about it in the store ? A. Yes. 

Mr. Evarts — There seems to be a difference of opinion among us, your Honor, 
as to how many peremptory challenges we are entitled to. 

Judge Mason— The statute only gives you the privilege of peremptorily chal- 
lenging two jurors. 

Mr. Field— That is my view of the rule. 

Me. Evarts — My associate, ex-Judge Pierrepont, thiukswe are entitled to three ; 
but I think myself we are only entitled to two. However, we would like to have 
your Honor's ruling upon the point. 

Judge Mason — I am inclined to think that the law was changed, making it three ; 
but I don't mean to jeopardize the trial for a surmise. The statute before me de- 
clares the number to be two, and that must be the ruling of the Court. 

Mr. Evarts— It is agreed, then, that there are to be but two peremptory chal- 
lenges, and that no exception will be taken by either party to your Honor's ruling. 
The juror, Mr. Van Valkenburg, may stand aside, and the Clerk will be kind 
enough to call another juror in his place. 

Edward M. Seaman was then examined and accepted instead of Mr. Van Val- 
kenburg. 

Mr. Evarts— We will excuse Mr. MuUer also, 'and the Clerk will call another 
juror instead. 

Caspar J. Westervelt, proving satisfactory to both parties, was accepted as the 
twelfth juryman, making the number complete. 



7^ 



The jury thus empanueled answered to their names, as follows : Charles B. 
Cornell, Berman Cushing, Thornas Warren, Benjamin Way ,^ Hans J. Hansen, Wil- 
liam Holden, Edward M. Seaman, Henry Hams, John Drinker, H. K. Ball, Marcus 
Klinger, Caspar J. Westervelt. 

A NICE QUESTION. 

Ex-Judge Pieerepont — If your Honor please, a question has arisen as to the right 
to begin, and we now move that the Court direct the defendant to commence the 
case. You will perceive that the complaint states that these libels were published in 
the Albany Evening Journal on the 18th and 24th of June, 1864. The answer ad- 
mits the publication, but justifies the act by stating that the publication was true. 
Nothing that is alleged in the complaint is denied in the answer. Consequently, 
imder our rules of proceeding, there is nothing for him to prove ; and it is for us, 
upon whom the burden of proof rests, to open the case to the Court and jury. There 
is no denial of a single allegation contained in the complaint. The defendant states 
that these allegations are true ; but he also says that he did not make them until 
after he had given the matter his careful consideration, and that such consideration 
was enough to convince any man of ordinai7 judgment that the allegations were 
true. Now the Code, if your Honor pleases, makes provision for a case of this 
kind, and I refer j'outo page 165 to strengthen my position. The defendant having 
admitted everything that is charged in the complaint, there is nothing for the 
plaintiff now to prove, and the burden of the case falls upon us. We are here 
ready to meet the burden by way of jusfification, and it is for us, therefore, to be- 
gin the 'case.. If we don't satisfactorily prove the truth of these allegations we are 
liable. No special malice is claimed nor specific damages called for in the pleadings, 
and we ask your Honor to direct that the party having the affirmative shall prove 
the case. The question has repeatedly come up in England in libel suits, and this 
has been the practice. If there is anything to be proved by the plaintiff before the 
case goes to the jury, of course he has the privilege of introducing testimony ; but 
I hold that in the present condition of the pleadings, the burden of the proof is 
upon us, and we are entitled to open the case. 

Ex-Judge Emott — Does the gentleman on the other side mean to say that if 
this case was given to the jury without any evidence, merely upon the pleadings, 
they would be bound to give a verdict for the plaintiff for any amount of damages 
he might claim ? Does he mean to say that we are not at liberty to prove malice ? 
We have a right to show express aild positive malice on the part of the defendant. 
In regard to the amount of damages, is it not important for us to prove the extent 
of the circulation of the Evening Journal ? How else are the damages to be en- 
hanced or lessened except bj' showing the circulation of this newspaper ? As we 
have to go to the jury on, the question of damages, it is important for us to show 
how extensively these libels were promulgated. I am surprised that the point was 
raised by the gentleman, because the practice is well settled, both here and in Eng- 
land. Lord Denmai>, sitting with Lord Lyndhurst and Baron Bailey, decided in a 
case exactly similar to this that the plaintiff was entitled to begin the case, and 
overruled kho decision in the case of Cooper vs. Whitelj^ where the Judge was of an 
opposite opinion. In the case of Huntington vs. Conkey, reported in Barbour, there 
was a similar decision, which was affirmed by the Monroe general term. But the most 
important case of all was that of Fry vs. Bennett, where this point arose and was dis- 
posed of after the English fashion. The case came up before Judge Oakley, who ruled 
that the right to begin was with the plaintiff, and Chief-Justice Bosworth affirmed 
the judgment. The question then came up before the Court of Appeals at Albany, 
where it was fully argued, and the result was that the Court affirmed the ruling of 
the lower Court. In the case of Littlejohn vs. Greeley there was a similar decision ; 
so that it may fairly be considered the practice in all our courts. 

JundE Mason — I am very much inclined to think the rule is as is stated by the 
counsel for the plaintiff. In cases of this description especially the plainti^ should 
have the right of introducing testimony as to the question of damages. In no 
other way can the damages be enhanced or mitigated except by proof. 



Mr. Evarts — Your Honor does not wish to deprive us of the right to offer autho- 
rities. I think I shall be able to satisfy this Court that the cases of Fry vs. Ben- 
nett, and ilittlejohn i)s. Greeley, are wholly distinguishable from this case. Now, 
the circulation of a newspaper, however great or small, does not affect the question 
of malice one iota, and it would be a matter of error for the plaintiff to be permitted 
to prove anything not set forth in the proceedings. Baron Alderson lays down the 
rule in this way : ' ' What would be the consequence if no evidence was to be given 
at all ? He who would not wish the result to be against him, must begin." Judge 
Darling Sufith, of this State, decided similarly The plaintiff in this case claims 
damages generally, and I submit to your Honor that it would be unfair for him to 
come in here and produce testimony as to any specific damages when hfe does not 
malie the averment in his complaint. 

Judge Mason — I am strongly of the opinion that the plaintiff has the right to be- 
gin this case. It is true he has not stated the extent of the damages in the plead- 
ings, but that dees not prevent him from putting in evidence the circulation of the 
Evening Journal, with the view of getting at the question of damages. I am also 
inclined to think, in reference to the question of malice, that it is not necessary to 
make a special averment in the pleadings. There may be some doubt about the 
rule ; but I so hold, and I think the law is to that effect. 

THE CASE FOR THE PLAINTIFF. 

Ex-Judge Emott opened the case for the plaintiff and spoke substantially as fol- 
lows : If the Court please, and gentlemen of the jury, the appearance of this court 
room testifies that there is something of great public interest in this case. The jury, 
however, has been selected with great care on both sides, and are supposed to be 
unbiased. It is not to be supposed that these parties are unknown to you, nor 
that any of you enjoy their acquaintance, but they are men of such repute that 
you cannot fail to know something about them. Now I wish to remove any 
impression that you may derive from any source whatever that this is a politi- 
cal libel suit. It is true that you have before you two men who occupy a pro- 
minent position in the same political party ; but gentlemen, this is not a suit with 
reference to political questions. Nor is any action brought here which can affect the 
political proceedings of either of the parties. It is a case where the defendant has 
ventured to promulgate in the most deliberate manner charges which affect the 
personal character and integrity of the plaintiff in this suit. It is no political 
strife between the two parties, but a question affecting the private character of the 
plaintiff. George Opdyke must be known by reputation at least to every one of 
you. Once the chief magistrate of the greatest city on this continent, and long 
before that associated with the leading merchants of New York, who would spurn 
his acquaintance if there was anything affecting his character for honesty or mo- 
rality. If I was addressing you, two years ago, upon the question of his charac- 
ter. I would have nothing more to say. He is now before you — a man charged 
with swindling^with being a speculator upon his country in the hour of its great- 
est peril — as a man who was ready to sell his soul for gain — as a man accused of 
perjury in the public prints of this city, as he walks before his fellow-citizens. The 
whole of this is the work of the defendant, and his counsel stands here to-day to 
justify it. They have invited the justification, and we are prepared to meet it. 
Thurlow Weed must be known to you as well as George Opdyke. He is a mem- 
ber of the same political party as the plaintiff, and was formerly publisher of the 
Evening Journal. He is an able writer, and charges of this description come with 
double from his pen. His ability as a journahst is unquestioned. He has done as 
much, if not more, than any man to build up a party which now rules the destiny 
of the coimtry, and whose influence will be felt all over the known world. He has 
been for years the political leader and guide in this State, with an influence spread- 
ing all over the Union. He is allowed to control the columns of a newspaper even 
after he has severed his connection with it, to attack the character of the plaintiff. 
But the case does not stop here. Standing where he did, he affixed his initials to 
the libelous articles, and sent them broadcast to the world, not as the missives of 
soiue unknown and obscure editor, but as the productions of his individual pen. It 



is no obscure libeler that we have to deal with. And now for these charges which 
are made against my client. If you are unfamiliar with the publications 
which have brought us here to-day, you will be astonished with the magni- 
tude of the crime, and be at a loss to impute a motive for such gross 
and reckless conduct. I have collected from the files of the journal the gist of 
these charges, and without reading the whole of the articles I will briefly state 
what they contain. I will begin with this sentence : ' ' George Opdyke has 
made more money upon army contracts than any fifty Jew sharpers in New York." 
The next charge is more specific as regards malice ; but it is necessary for me 
to explain matters a little. Previous to the July riots, Mr. Opdyke was interested 
in th'e manufactory of guns and carbines for the government . The mob made 
this factory the object of their special vengeance, and utterly destroyed it, 
together with all its contents. Not even the books and papers were saved, so 
quick and complete was the work of destruction. A claim was made upon the 
county for the loss of this property, and the Board of Supervisors allowed it. The 
claim was made by Mr. Farley, who was the manager and part owner of the 
factory . Mr . Opdyke made no concealment of his interest in the establishment, • 
but, like any man of business, thought it would be better for the manager of the con- 
cern to make the claim, which was fairly stated, and allowed by the Board of Super- 
visors. The libelous article, in referring to this claim, says that George Opdyke 
concealed his interest from the Board of Supervisors in order that he might, as 
Mayor of the city and ez ojjicio member of the Board, have the privilege of sitting 
in judgment upon his own claim. It was also stated that a portion of these guns 
which had been delivered to the government, and for which he received $25,000, 
were charged ia the bill against the city, before the Board of Supervisors, and that 
in this way the plaintiff received double pay for his guns. The next allegation is 
that at the time John C. Fremont was a candidate for the Presidency, his financial 
position was such that he had to dispose of a portion of his Mariposa estate to 
raise some money, and that on that occasion two million five hundred thousand 
dollars of the stock was wrung from him by the plaintiff, who took-advantage of 
the candidate's necessities. The next charge is that the plaintiff was engaged in 
selling shoddy clothing and blankets to the government. That these shoddy ar- 
ticles were rejected by the government agents in this city, but " were worked in in 
Philadelphia." I suppose thei-e can be no doubt about the meaning of the words 
"worked in." They certainly mean something disgraceful. But the most mali- 
cious charge of all was the allegation that George Opdyke sold the ofiice of Surveyor 
of the port of New York for the sum of $10,000. We have claimed, for this false and 
malicious attack, the sum of $50,000. They will not say that this sum is beyond 
the ability of the defendant to pay. I tliink they will hardly say that this is more 
than we have a right to demand, especially as these charges have been directly re- 
newed, and are even now on record in the courts of justice . I say that, if they fail to 
prove these charges, the sum of $50,000 will not be near enough to cover the re- 
sults of the injury inflicted. It is not money for which this cause is brought ; but 
we demand your verdict— the largest and most decisive, as well as the expression of 
yoiir opinion — the opinion of a jury drawn from among the intelligent men of this 
county. It is to know the outrageous character of the libel, and the unfounded 
charges on which it is based ; and to give you an opportunity so that you may 
show that sense of its untruth when that shall have been proved ; your sense of its 
character, as it stands in the columns of the paper where it was first published. A 
good deal has been said about motives in the case. It is hard to say what may have 
been the motives for this publication. It may have resulted from disappointed 
schemes of ambition. It may have been the result of envy or of wounded vanity. 
In any way, the motive was malicious. And if these things be so, if we do not 
receive at your hands a verdict that shall ring through the land as loud and as wide 
as these charges have gone, justice will not be done. No trifling amount can mark 
your reprobation of such a libel, nor of your sense of justice in this case. There is 
no mistake in this issue.- Either George Opdyke is a heartless, brutal, corrupt and per- 
jured scoundrel, or else the author of this publication is a libeler, attacking a man's 
dearest opinions in language the most inflammatory that can be invented. If this 
be 60, there can be no verdict given by you too large to punish him. What is more 



8 

important to the community, to you, and to Mr. Opdyke, is that you should consider 
this question in regard to its results. You must show that the influence in the hands of 
the publishers of newspapers is not altogether unlimited. But I must say that there 
is no power in this country equal to that of the proprietors and conductors of the pub- 
lic press. They have the means of doing wrong, and inflicting evil greater than that 
allotted to any other power in the world. Frequently we hear that counsel in a public 
court does this and does that. But the voice of counsel dies within the room 
where his words are heard. The conductor of a public newspaper puts his ideas in- 
to print, and sends them broadcast throughout the country. When these words 
come mto general circulation, there are no means by which their influence can be 
stopped. The only control that can be exercised over them, is to be found in the 
wise and proper principle in which public justice is administered through the law. 
The learned counsel then proceeded to read the words charged as libels from t;-\e 
Evening Journal of the 18th of June, conveying direct reflections on Mr. Opdyke, late 
Mayor of the city of New York. 

" This man has made mora money by secret partnerships in army cloth, blankets, clothing, and 
gun contracts, than any fifty sharpers, Jew or Gentile, in the city of New York. * * * 

"G. W. Farlee, Opdyke's son-in-law, made a claim upon the Supervisors for damages sustained 
by the destruction of guns in the process of manufacture under a contract with the Government. 
Mayor Opdyke was, by virtue of his ofaco, a member of the committee before which this claim was 
allowed. Opdyke disclaimed any personal interest in the gan claim. Farley denied in the journals 
that Opdyke was interested, and made an affidavit, which was submitted to the committee, swearing 
that he. was the sole owner of the gun contract. Opdyke, therefore, sat in the committee, investigat- 
ing the claim of his son-in-law, and at an early day received a check for §190,000. It is alleged that 
$25,000, received from the government on the contract, wa.s forgotten in making up the claim against 
the city. But though the city paid handsomely and promptly, 'Oily Gammon ' soon came ' to grief.' 
He refused to divide profits fairly, and Mr. MclVcII, member of the present legislature, commenced a 
suit against George Opdyke for a sixth part of the $190,000. In presenting this claim to the Supervi- 
sors, Opdyke declared, and his son-in-law, Farlee, made oath that the former had no pecuniary inter- 
est in it. In answering Mr. McN'eil's complaint, Opdyke denies that McNeil is thus interested, and 
avows himself as the owner of the share claimed by the plaintiff! And this answer to McNeil's com- 
plaint is sworn to by Opdyke ! This, therefore, is Mayor Opdyke's position. To qualify himself to 
,act impartially and honestly for the tax-payers of New York, on a committee he disclaims being inter- 
ested in the gun claim, and to that disclaimer his son-in-law adds an affidavit. The claim is allowed 
and paid. A partner, after calling the ex-Mayor a swindler, prosecutes for a share of profits ; and in 
his defense, Oydyke made oath that he owns the largest share of the contract, which, before the 
claim was paid, he had repudiated. . 

"* * * * More than a year ago, Mayor'Opdykc and others reminded General Fremont 
that, when he was a candidate for President in 1856, he was weakened by pecuniary embarrass- 
ments ; and that as his friends intended to run him again, it would be wise to put his . affairs into a 
better shape. The General assented, giving to Messrs. Opdyke, Morris Ketchum, and D. D. Field a 
schedule of his debts. These//-ierec?s formed themselves into a Mariposa Mining Company, mortgag- 
ing the mines for 11,500,000, with the proceeds from which all the General's debts were to be paid. 
But difficulties arose, which, however, were' adjusted by the payment, by General Fremont, of 
$2,400,000 in Mariposa stock, to Messrs. Opdyke, Ketchum, and Hoey, and a c unsel fee of §200,000 
to David Dudley Field, Esq. And said the confidential and real friend of General Fremont, who gave 
me this information, ' there were other exactions and extortions during the negotiations, that would 
make Jews blush. ' " 

Counsel also put in the following from the article published in The Albany Even- 
ing Journal of June 25th, 1864. 

" Mr. Gibbs, the carbine patentee, says, that in the 'claim' submitted to the Supervisors, on 
which $190,000 was paid, there is a large swindle. * * * Opdyke can, if he pleases, enlarge 
the field of inquiry so as to embrace the alleged sale of the office of Surveyor of the port of New York 
for the moderate sum of §10,000 ; the copartnership with ' Nothing to Wear ' Butler in the Custom- 
House ' labor contract ' ; and the 'shoddy' blankets that were rejected in New York and subse- 
quently worked in at Philadelphia." 

TESTIMONY OF PHILIP TEN EYCK. 

Philip Ten Etck sworn ; examined by counsel for plaintiff : I was one of the 
publishers of the Albany Evening Journal in June, 1864 ; the defendant, Weed, was 
not then in any way connected with the paper ; he had no interest in it, whatever ; 
we printed the Daily, Weekly, and Semi-weekly Albany Evening Journal ; they all 
contained pretty much the same reading matter. 

Q. What was the extent of their circulation — the paper containing this libel ? 
(Objected to ; objection over-ruled ; exception taken.) A. The aggregate circula- 
tion of the three editions was from 23,000 to 25,000, mainly in the State of New 



9 

York, west of the City of New York ; it had a limited circulation in this City ; 
it exchanged with pretty much all the prominent newspapers in the State, and 
to some extent outside of the State ; the Weekly edition was about 17,000 ; the 
Semi- weekly not more than 2,500 ; it was sent to the Governor and some of the 
officers in the State House. 

Cross-examined — ^The paper was not circulated by public authority among public 
officers ; it was sent as a matter of favor to them, and also to the crier of the Circuit 
Court. 

Re-dired — It was sent to subscribers in the State Legislature ; there was a dispute 
about its being a State paper ; Judge Hogeboom gave it as his opinion, prior to June 
last, that it was not. 

TESTIMONY OF ALEXANDER WILDER. 

Alexander Wilder sworn ; examined by counsel for plaintiff ; I live in New 
York city ; I belong to the staff of The Evening Post ; my duties lead me to Albany 
every winter ; lamar-quainted with The Albany Evening Journal ;\icircu\.ivtes in places 
where I have seen it— -generally among members of the Whig party and Republican 
party ; occasionally among leading members of the Democratic party ; I have 
known the paper ever since .1 was a boy. 

Q. What has been its character and position ? (Objected to.) A. It was a po- 
litical paper, first anti-Mason, then Whig, then Republican ; as such, it was taken 
by persons having sympathies with it ; it having been once or twice the State paper, 
it got a circulation in different counties of the State on that account, it stood 
among the first-class papers in the State ; I knew nothing of its circulation out of 
the State ; never saw it except in some Jiterary associations ; I have found it taken 
in most of the departments at the State Hall, and taken, I should judge, by the 
average of our comity officers ; wherever I have been I have found it. 

Oross-examined—^lt is difficult to say exactly what I mean by being on the staff 
of The Evening Post ; I am correspondent generally at Albany during the sitting of 
the Legislature ; I have been one of its reporters here — police, and about the city ; 
1 do not now hold that capacity ; I now assist in the office. 

Q. Have you any knowledge of it, except as seeing it in The Evening Post? A. 
If I understand your question, I should say I have not. 

Q . Do you hold the office of Health Warden ? A. I do not ; I was Assistant 
Health Warden last year ; I think the nomination came from the City Inspector, 
with the approbation of the Mayor, confirmed by the Board of Aldermen, also by 
the Mayor, I suppose ; while I held the office I was on T/te Evenmg Post. 

Se-direct^Q. Have you any particular knowledge by what Mayor you were con- 
firmed ? A. I have not. 

TESTIMONY OF MANTON MARBLE. 

Manton Marble sworn ; examined by counsel for plaintiff; I am editor of The 
World, and was such in June, 1864, a daily paper in this city. 

Q. Have you taken notice of the articles, portions of which have been read this 
morning? (Objected to.) 

Counsel for plaintiff proposed to show that these articles were republished in 
The World at the request of the defendant, with a view of showing malice. 

The Court. — ^You did not allege in your complaint that it was published in any 
other journal. 

Counsel for plaintiff claimed that a reiteration of the same slander or libel was 
admissible; 

The Court excluded the testimony, to which ruling Counsel for plaintiff ex- 
cepted, and then rested the case, whereupon the Court adjourned till to-morrow at 
10 o'clock. 



10 
SECOND DAY. 

WEDNESDAY, DECEMBER 14TH, IS64. 

The Court-room was again crowded to overflowing, a large portion of the spec- 
tators being lawyers and politicians. 

EDWAEDS PIERREPONT OPENED THE CASE ON BEHALF OF THE 

DEFENDANT. 

May it please the Court, -gentlemen of the Jury, I begin to feel like Hamlet, that 
there is a special Providence in the fall of a sparrow, and that we are each but little 
atoms floating down the great river of time, borne by the resistless current without 
the' slightest choice on our part as to the isle or the bank upon which we may be 
thrown ; that " there is a destiny that shall shape our ends, rough hew them as we 
wiil." I have never struggled to avoid the trial of a cause. I have, striven with 
all the powers of skill with which I am possessed to avoid this trial ; I had hoped it 
never would be brought on ; I had sought through the friends of the opposing 
counsel, or the opposmg party rather, aided by my associate (Mr. Evarts), to avoid 
the public scandal, the disgraceful exhibition of public men which this trial must 
needs present before this community. Our client, Mr. Weed, said it was a public 
duty ; he did not shrink from it ; we did ; until I began to feel that I was a coward 
in my own esteem, from my reluctance to come here before you and this commu- 
nity, and to do my part toward exhibiting the most stupendous frauds and the most 
outrageous corruptions that have ever been exhibited before any civilized com- 
munity. In the progress of every nation, the time always comes when the corrup- 
tions among men in high places becomes so glaring and so outrageous that they 
cannot escape exposure. Such was the history of England after the great South Sea 
Bubble exploded. And I undertake to say to you here, to-day, that never did 
Lord Mansfield sit upon a trial in which were involved such great and high conset 
quences as are to follow the trial of this cause. From this time, it will receive a 
public notoriety and importance which has never been equaled in the history of 
this nation. The counsel who opened this case did not overstate its importance, 
nor can he overstate it. It was as impossible to prevent this tidal as to prevent the 
rebellion or the fall of Fort Sumter. We had reached a state of corruption in the 
public administration of affairs in this city to that degree that it could be borne no 
longer, and something must open the issue and exhibit it before the world. The 
something always does happen. It arises out of the passion, and hatreds, and 
selfishness of the very actors themselves, as in this case. In 1848 there was a great 
revolution in France. The king was driven from his throne and not one of his 
children ever yet returned. Just before that outbreak De Tocqueville rose in the 
Chamber of Deputies and gave solemn warning of the inevitable tendency of the 
existing corruption of public and private morals . He stated it as his conviction 
that it would result in a revolution in a very short time. For this he was hissed by 
every member present. And yet in thirty days the king was driven from his 
throne, and France expiated her crimes in the blood of 10,000 of her sons. We 
shall exhibit to you on this trial a state of corruption which, I venture to predict, 
will be the beginning of a revolution here. God grant that it may be bloodless ; 
I believe that it will be. You will see an exhibition of corruption in public morals 
beginning here to-day, which will end in a change — which is the beginning of an 
end, and which our people will say they are not willing longer to tolerate. Gen- 
tlemen, when the eminent counsel who opened this case was addressing you, I 
looked into his clear, honest, truthful countenance, and I saw the tremor of the 
confusion, and the struggle between his conscience and his client. He never should 
have been brought into this trial by this plaintiff. There was no soul in 
his voice ; there was no magnetism in his eye ; none of that sympathy in 
his face, which in a righteous cause would have won over every beating 
heart in that seat. But he tried to lash himself into a belief that there 
was some justice in his cause ; therefore he overstated and exaggerated to 
the extremest degree the statements which he said had been made by Mr. Weed. 
I took down his words. He said this libel substantially charged Mr. Opdyke 



11 

■with being a perjured sprefcch who would sell his soul for gain, while others 
burned with a patriotism ; a heartless plunderer of his country ; a thief, a swin- 
dler, who had put $25,000 falsely into his account to the city ; a perjured official, 
a traitor to his country ; false to his friends ; a trader in public office. Those are 
his identical words . Now let us see if there is anything to warrant them. I will 
read the libels from the original paper. (Counsel here read the portions that were 
published in the report yesterday, with a few additional paragraphs. ) Mr. Weed 
in his answer sets up that he believed these things are true, and tbat he was pro- 
voked to make this exhibition in consequence of the attack made upon him about 
- the Catalinej-a slander which Mr. Opdyke made because his political enemy would 
not help him to a place out of which he could make money. Now if we do not 
convince you that these statements in the article complained of are not only sub- 
stantially but perfectly true, then our witnesses will fall far short of their writ- 
ten testimony whiclr we have taken in this cause. You recollect yesterday we 
moved the Court for the right to open and close, the burden being upon us ; and the 
other side opposed it, claiming that they had the right to show express malice, and 
giving the Court to understand that they intended to prove it. The Court decided 
that they should have the opportunity. Have they shown a particle of express 
malice ? You will see that this case is one of malice, and that the plaintiff is 
moved in this matter by two passions, viz : malice and avarice. We have learned 
in the progress of this trial that Mr. Opdyke persisted in bringing it on in .spite of 
every good friend, who told him he was an idiot in so doing. We finally got at 
the reason of his persistency. He thinks he can get money out of the defendant, 
and is willing to risk his reputation for the sake of money. So said one who was 
his partner, and who will be put on the stand. " You will find," said that partner, 
" that the passion of avarice lias so taken possession of him that he has even let 
his own house in the Fifth avenue, where he told me he was worth $2,000,000, 
and had gone to a boarding house to save money." The answer avers not only 
that these charges were provoked by the false accusation in regard to the Cataline, 
with which it was proved, over and over ag.ain, that Mr.- Weed had no connec- 
tion, but by other charges brought by Mr. Opdyke to the injury of the de- 
fendant. The acquaintance of these two men commenced in this way. Mr. 
Opdyke, having made a great deal of money, wanted some political honor, so he 
got elected to the Legislature. Mr. Opdyke arose from an humble beginning, in New 
Jersey. Mr. Weed also arose from an humble beginning. Both struggled up from 
the lower ranks of life. But there is this difference between them : Mr. Weed still 
retains his feelings of affection and kindness toward the class fi-om which he 
sprung, while Mr. Opdyke kicks away with scorn the ladder by which he ascended. 
At first he was a Democrat, but afterward became a Republican. He sought the ac- 
quaintance of Mr. Weed. He mingled his desire of money-making with what he did 
He sought to accumulate it by the sweat of other men's brows, and by the use of 
his capital, so he introduced a bill to repeal the usury law. Mr. Weed saw Mr. Op- 
dyke, and told him it was not right. Mr. Opdyke made a speech in favor of it, and 
urged it through the newspapers, arguing that it would be better for the poor peo- 
ple, because the result would be that the rate of interest would fall below seven per 
cent. "If that is so," said a shrewd silversmith up town, " then why don't it fall 
below seven per cent, when there is no law to prevent you taking less V ' Is 
there any political philosophy that can answer that ? Everybody knows that it is 
only the money-lender who wants the thing done, unless it be somebody who has 
been humbugged and deceived. Opdyke quarreled with Weed in regard to the 
matter. Weed came out and denounced the proposed change. Then there ap- 
peared a violent article in The Herald, written, as was found, by Opdyke. Weed 
was at the Astor House ; Opdyke came and excused himself for having published 
the article, and wanted their enmity to drop. They seemed to bury the difficulty. 
Then they talked confidentially about the management of political affairs, and how to 
raise money for the political canvass. Next morning that private conversation, with 
exaggerations and falsifications, every word of it, appeared in The Herald. Again 
Opdyke excused himself to Weed. But Weed said : " I have no more to do with that 
traitor," and he never spoke to him since. When the rebellion broke out, our Go- 
vernment apprehending foreign recognition of the rebels, sent Archbishop Hughes 



12 

and Thurlow Weed as agents to visit the crowned heads and great men in Europe, ' 
and set the minds of the people right concerning our affairs. The influence of those 
men did stop that recognition of the Gonfederacy. On his return, the Common 
Council voted Mr. "Weed the freedom of the city and a public dinner. Mayor Op- 
dyke vetoed the resolution, admitting atjthe close of his veto that there were other 
reasons than those he had expressed which he would not give. The indignant 
Common Council passed the resolution over his veto, and Weed received the free- 
dom of the city. Now, the opening counsel said there was no provocation for 
these charges. Just twenty-four hours before this came on, there appeared in all the 
newspapers the most violent and bitter attrck upon Weed that you ever saw, by Mr. 
Andrews, pretended in consequence of a grievance which happened last summer. 
When I. saw Opdyke, day before yesterday, • walking with Andrews, I under- 
stood why the letter came out at this time. In that lett(ir, he says Weed dropped 
some disparaging remarks about Mrs Lincoln, and he ran that very night and told 
her, and that, subsequently. Weed, when in Washington, got forgiven. But the 
tale-bearer never got forgiven, for Mrs. Lincoln saw that he was ejected forthwith 
from his office and he never had one since. She treated him right. Now, if Op- 
dyke brings this suit for the purpose of vindicating his character, and not to get 
money, why didn't he commence a criminal prosecution ? But tlie counsel must 
have $50,000 dollars to punish the defendant. Nothing but avarice moves this 
action. Ambition and lust grow weak with age, while avarice increases even to the 
moment wh^n a man droops into the grave . The charge against the plaintiff is, 
that he resorted to contrivances by which to put money in his pocket in a 
way that is not lawful, honorable and just. Under the present law of libel we 
are allowed to justify by proving the truth of the charges. We should do so. They 
dare not refuse to put the plaintiff on the stand. He will have to tell his own 
story to you. One charge is, that he did recover out of this city, in an illegal manner, 
some $60,000, while as its public guardian he held a flaming sword against any one 
who should attempt to rob it . Another charge is, that it was alleged that he received 
for the office of surveyor $10,000. We shall prove that it was alleged, and that there 
was ground for its allegation. Another charge is, that he got a large amount of 
money in an extortionate way out of Gen. Fremont in the Mariposa mining opera- 
tion. We shall put witnesses on the stand to prove that. Another is, that 
he made extortionate contracts out of the Government, connected with army 
clothes. We shall put witnesses on the stand to prove that. These are all 
the charges that are made. Now for the proof. In the libel it is said 
that he can enlarge the field of inquiry so as to embrace the alleged sale of the 
office of Surveyor of the Port of New York for $10,000. We say it is alleged; 
we shall prove it in this way: A man named McNeil, now a member of the Legisla- 
ture, who was a partner of the plaintiff, a man whom you will note and whose 
every word you will believe, was an active politician in' this city in 1859, when 
the plaintiff wanted to run lor mayor. Opdyke applied to McNeil for assistance — 
the same man who subsequently became his partner and also sued him to recover 
part of his ill-gotten gain — the same man to whom the plaintiff paid, four days 
ago, $11,000 to stop the suit. Opdyke, following the example of other mayors, 
got his picture exhibited in all the shop windows. He was beaten by Wood. Two 
years afterward Opdyke went -to McNeil again for help to be elected Mayor. 
McNeil asked him to give him a little advice. Opdyke assented. Said McNeil, 
" That's a good picture of yours, but somehow it don't take ; the instincts of the 
people are not educated up to that style of face. Now put the pictitre out of sight and 
use money." When Opdyke heard that word, "he was sorrowful, for he had 
great riches," so he thought, " How shall I get along without paying the money 
myself ?' ' McNeil said, ' ' If there is a right kind of Surveyor in the Custom House 
who will assess the clerks some $10,000, that can be handed over to you, so that 
the election will not cost you anything." Opdyke took. Henry B. Stanton was 
Opdyke' s candidate. Says McNeil, "Suppose Andrews is put on the track as a 
third man." That is the thing," says Opdyke. So McNeil and A. J. Williamson 
went to see Andrews. They met him at an oyster house and had a drink. Andrews 
asked McNeil to get Opdyke's influence at Washington. " What will you give ?" 
says McNeil. " I have got nothing," says Andrews, " but I will assess the clerks 



13 

for $10,000 for Opdyke' s election. ' ' McNeil went back to Opdyke and said, ' 'Andrews 
says if you will withdraw your influence for Stanton and let him have that office, 
he will give you the money for the election." That relieved Opdyke. "But won't 
he cheat you ?" said Opdyke. " No," says McNeil, "he looks like a man that 
won't cheat." "Then, go," says Opdyke, " and take Williamson with you, and get 
the promise to you two together and I will agree to it. So they went and made the 
bargain at the same oyster house the next jiight. Opdyke did not press Stanton, 
so that Andrews slipped in, and Stanton did not know that Opdyke was playing 
traitor to him. Opdyke was elected mayor, and the poor clerks paid in different 
assessments^ some $9,000 and odd. Now came in Barney as collector, who said 
that money ought to go to the Committee instead of to Opdyke. Some friend said, 
"Are you afraid to trust Opdyke with it?" Stroking his face, Barney said, " The 
proper way is to let the Committee take the money ;" so the money went to the 
Committees, headed by Churchill and Keyser ; but, after all, a part of the money 
did get into Opdyke' s hands, on the ground that he had advanced his own money 
for his own election ; Andrews had promised McNeil tliree or four places for his 
friends in the Custom-house ; McNeil asked for the places after Andrews' appoint- 
ment, but never got them ; he grew suspicious; and finally asked Oixlyke, "Has 
Andrews ever paid you that $10,000?" "No," says Opdyke, "I have only got 
$7,000 of it ;" a few days after that, Opdyke, McNeil, and Andrews met at Wil- 
lard's Hotel, in Washington; McNeil, indignant at the way he and Opdyke had 
been treated, went up to Andrews and said, "You are a cheat ; there is no honor or 
truth in you ; you promised me three or four places, and you have cheated me and 
Opdyke also ;" Andrews said, " I did pay Opdyke the S10,000 ;" just then Opdyke 
said, " Charley, be still ; come with me and let's take dinner ;" McNeil threw him 
off; "I was taoarding thei-e myself," said he, "and I knew that he would 
not give me a drop of winej and I would not go;" still McNeil remained 
Opdyke's friend ; Opdyke said, " You and 1 can make some money. 
There is a Government contract for making ten thousand carbines by Brooks, 
and we can go into it ;" so they made an agreement with one Marston, who 
had an establishment, corner of Second avenue and Twenty-first street, to 
make the guns. The order from the Department was in 1861, and 
it was assigned to Opdyke and McNeil in 1862. They hired Marston, 
who, not having any money, it became necessary for Opdyke to advance a 
large amount. It ran on until he had advanced $65,000, for which they took 
a chattel mortgage on the machinery. Loren Jones, the superintendent, again 
looking over the accounts in December, 1862, found that Opdyke had lost some 
$30,000. Opdyke became exceedingly, blue, and said he would sell out at a loss of 
$25,000, but nobody bought him out ; so he thought lie would buy Marston out, 
and they had the goods appraised and transferred to Opdyke's son-in-law, 
Farley. McNeil had advanced several thousand dollars, and Jones was likewise in- 
terested in it. Then they kept close watch of the accounts. Tliey got a foreman in 
who cheated them out of a large sum. Just one week before the fire occurred they 
looked and found that Opdyke could not get off well without a loss of S25,000. 
On the morning of the 13th of July, Jones had thirty-four policemen come to that 
armory, who were prepared with loaded arms and ammunition to keep away a 
regiment of men. A rioter during the mornmg dashed in the panel of the door 
with a sledge-hammer. The poupemen fired, killed the head man, and wounded 
another; the rest ran away . Not a soul of them dared to return, Later in the 
day came an order to withdraw the policemen . Jones was appalled. He hastened 
to the Mayor's office. The Mayor was not there. He was at the St. Nicholas with 
Governor Seymour and General Wool . Jones saw Farlee, stated the case, and 
asked what it meant. Farley smiled, and said "I don't know." Jones went to 
the St. Nicholas, saw Opdyke, and asked him " what does this mean? The pro- 
perty will be destroyed." OpcJyke says, " Well I don't know ; I guess I'll go and 
take dinner." Jones went back to the factory. By-and-by women and children 
came about it, then men, and set it on fire. One day before the fire, in looking 
over the accounts, they had found that they had paid out $183,000, and there w^s 
yet due workmen $2,000. Jones was not a lawyer ; Farlee was. McNeil went to 
Opdyke ; Opdyke said " you keep still, keep out of the way, don't boftier about 



14 

this thing, Jones and I will make this matter up, and this city will have to pay for 
it." There was to be an auction of the refuse after the fire. McNeil wanted to at- 
tend it. Opdyke says, " don't go. near it ; it will be all right." McNeil, who had an 
interest in it, went to Farley, who said the same — " it is going on right ; you shall 
have your $2 on each carbine, the same as though the contract had been fulfilled. " 
"Well, they undertook to make up the account of the loss to the city. Jones went 
and saw Opdyke about making up the account. Says Opdyke : " If I get back my 
money that I have put in, won't that be a pi-oper way ?' ' "Did the Mayor look at 
you ?" I inquired of Jones. " No," said he, "he was looking down on the paper." 
" What did you say ?" said I. "I said, ' you know you got $27,000 out of the 
Government for some that were delivered, and there was a loss of $25,000 or 
$30,000 besides ; if you get all your money back what are you going to do with us ? 
Leave us out in the cold ?' ' ' Opdyke hesitated, looked down again and said : 
" How ought this to be made out?" Jones said : "You are Mayor, you are watch- 
ing these things ; one of the objects of putting you there was on account of ypur 
wealth. Rich men never commit frauds. You know that for the guns when 
finished we get $24.70 ; well, they are in various stages of progress ; save nothing 
but the lock, worth S3. Now, suppose we deduct what it would cost to make the 
lock and then we save a profit to ourselves of $10 each gun. Won't that be a goo(3 
way of making up the account ? Deduct the price of manufacture, $14, and it will 
leave $10.70." Opdyke said : "Have you shown this to Farley?" "No." " Go 
and see him." All this time th 3 Mayor kept looking on the paper. Jones pre- 
sented it to Farley ; it took a long while to make him understand it. He said it 
was exactly the thing. So they made up the account. They had sold 1,050 car- 
bines for $27,847. The mistake Weed made was that it was $25,000. It was pre- 
sented to the Board of Supervisors. They did not sei^arate the guns in the account. 
They put in $97,000, the price paid for the machinery, and made out a total of 
$208,000, deducting therefrom $2,000, leaving the nmount of the claim $206,279. 
The account was confused ; I do not suppose a single Supervisor understood that they 
were taking wrongfully from the tax-payers $65,000. It was adopted October 20 and 
approved October 23, being sworn to by Farley, the son-in law of the Mayor, as being 
the sole owner. The Mayor gave a check to the order of Farley, who put it into his 
own bank and paid it back a few days after to Opdyke. Now the actual loss on the 
first thoiisand guns was $3.17 each. Each one is charged at; $13.17. On the next 
thousand $4.54, which was the value of the material destroyed — charged to the city, 
$15.24. Onthenext, $6.61— charged $17.81. Next, $8-charged $19. Thus, $13,870 
were charged to the city, where they should have paid $3,000 ; $15,240 where they 
should have paid $4,000 ; $17,315 where they should have paid $6,600 ; and $19,125 
where they should have paid $8,420; and so on, by which artful contrivance, from 
this city, was taken upwai'ds of $65,000 ; no Wall street financier ever surpassed that ; 
McNeil having kept away from the auction, comes to Opdyke and wants his share ; 
Opdyke can't attend to it just now ; he had not looked to see how McNeil's account 
was ; he would attend to it some other time ; that time came, and McNeil went to 
Opdyke's house with Williamson; Opdyke said "there are some difficulties about 
this thing, and I don't see how I can pay you what you claim ;" " What do you 
mean," said McNeil; " Didn't you tell me to keep off, and the thing would be all 
right ; and didn't Farley tell me if I kept away, I should have two dollars on each 
carbine?" said Opdyke, " I have reprimanded Farley most severely ; he had no 
right to tell you that ; but I will give you $1,000, and we will settle it ;" "A 
thousand dollars! it is $17,000, and you know it," said McNeil ; "Well, I can't 
give you that," said Opdyke ;" McNeil, putting his finger to his nose, told him he 
was a cheating, lying scoundrel in his own house, and left ; Opdyke sent William- 
son to try to stop him ; McNeil commenced an action to recover the money ; not. 
long after, McNeil met Opdyke in Congress Hall before breakfast, and there pub- 
licly called him a swindler, and told him he had dwindled him in this gun con- 
tract. Opdyke sat opposite him at breakfast, and the food dropped from his knife 
and fork when he undertook to eat. McNeil followed him iato the hall, and told 
him again what he was. And this defendant is sued because he said McNeil did say 
so. Now, we shall show that instead of its being notorious that Opdyke had an 
interest in this factory, as the counsel alleges, he wrote, and had it printed in the 



<r^. 



15 



newspapers that he had no interest in it. On the 25th of September, 1863. Opdyke 
sent such a letter to Albany, and caused it to be printed, saying that he had no in- 
terest, direct ot indirect, in any Government contract, nor any business connection 
with the Government, of any kind, direct or indirect. We shall show that he had 
an interest in multitudes of other contracts. Opdyke put in an answer to McNeil's 
suit, swearing that he was the principal owner of the claim ; and yet, his own son- 
in-law swore that he was himself the entire owner. The cause was on the calen- 
dar two weeks ago last Monday. This cause being expected to be tried, Opdyke 
went and paid McNeil $11,000 to stop his action.. Now the letter declaring that he 
had no interest in the contract, was addressed to Senator Harris, and in it he says : 
" Accept my thanks for your kind letter, prompted by Mr. "Weed's attack in The 
Eoening Journal on myself and one of my sons. I had read the article, biit did not 
regard it as worthy of notice." And he goes on to say that his friends knew that 
the charges were false as well as malicious, for he had long since convicted their 
author of the most reckless disregard of truth. Gentlemen, what will you think 
when I tell you that this " dear friend," Senator Harris, whom Opdyke asks to ac- 
cept his thanks for his kind letter, prompted by Mr. Weed's attack on him. had 
never written to Op Jyke a word ! It was a concoction. A private note was sent 
to Senator Harris, asking to be allowed the use of this trick. McNeil will tell you 
that they wanted Opdyke to fix this thing in writing, but he preferred to leave it 
to his honor. We shall show that Opdyke made enormous sums out of other con- 
tracts, that Samuel Churchill had a contract to make 16,000 soldiers' garments, of 
a certain grade of cloth, in 1861, and that he came to New York and Philadelphia 
to buy the goods to make them, but Opdyke, hearing of it. bought up every single 
piece in market in both cities, and would not sell the contractor a yard of it, com- 
pelling him to sell his contract at an advance of ten or twelve cents a garment. 
And we will show a similar transaction with William C. Churchill, and that Henry 
F. Spaulding sold Opdyke 40.000 yards of cassimere, which he dyed in the cloth a 
regulation blue, and passed it over, at an enormous profit, to the Government, and it 
faded in the sun and rain. Now for the Mariposa transaction. John C. Fremont, 
a name perhaps more renowned than any other to-day, a remarkably singular man, 
a genius, with a touch of wildness and imagination, far in advance of the times, 
a man who does not understand financial matters, who is simple as a child, became 
possessed of perhaps the richest mine in the world. Being in debt, it was proposed 
to mortgage the estate for $1,500,000, making Morris Ketchum trustee, and issue 
bonds for the same. It was done. Then Ketchum, Hoey and Field wore to arrange 
a mining company out of the balance of the property, and put it into stock, calling 
it $10,000,000, of which five-eighths was to belong to Fremont himself. It was 
required that he should give Opdyke, Hoey and Field 25,000 shares — 
$2,500,000 worth for being his dear friends. Opdyke had over $800,000 
as his share, as will be proved by Fremont himself. Then they required 
that $2,500,000 more should be placed in the hands of Ketchum, so 
that they could vote upon it and control the company. Fremont yielded, under- 
standing that he was giving only a proxy, and when he called to get it back he was 
told it was a trust. He was owing money in California, and while this thing was 
carried on by telegrams, costing over one $1,000, it was given out one day that it 
must be closed immediately or it would all fall through. So it was hurried up. 
Field then says, "I m\ist have my fees," and he got $200,000 of stock for his fees. 
Finally, Fremont employed a lawyer to get back the 25,000 shares ; at length they 
agreed to give him back 20,000 if he' would let them have the 5,000 at 25 cents on 
the dollar instead of 60, the price at which it was then selling. Out of $1,500,000 
bonds $280,000 were left, which Fremont thought he had a right to, but somehow 
or other he could not get them. Now, when you have heard the witnesses, and 
find that the plaintiff has done more than was charged in the libel, you will judge 
whether the defendant has done wrong or not. You will find that Opdyke was the 
leader in those matters and proposed to hold a meeting and fix up these things for 
Fremont. Fremont will show you that in various ways he has been stripped of his 
property and has little left. The counsel closed by adverting to the use of the word 
•'Jew" in the libel, maintaining that it was much the same as if he had said 
" Yankee." The counsel was aware, he said, that there were two Israelites on the 
jury. (The opening occupied two hours and a half.) 



16 

TESTIMONY OF JAMES WATSON. 

James Watson, sworn ; examined for defendant by counsel : I am County 
Auditor ; I have brought from the Comptroller's office the papers relating to the claim 
of Geoige W. Farlee ; I recognize the signature of that check dated New York, 
Oct. 22, 1863, to order of George W. Farlee, $199,700, signed by the plaintiff and 
other city officers ; it has been paid and retm-ned. [The account rendered by Mr. F. 
is duly sworn to by him, claiming 8207,062.] 

Cross-examined — The papers are kept loose and surrounded by bands ; every check 
must be drawn that way ; the majority of claims were first presented to the Comp- 
troller and by him passed to the JBoard of Supervisors ; then they were sent to the 
Comptroller ; a special committee was appointed to pass upon the claims ; many 
claims passed by them were paid without suits ; there have been suits where Super- 
visors allowed claims ; I was in the office in July, 1863. 

Q. Did 3'ou see The Herald on the morning after the night in which it was stated 
that Mr. Opdyke and his brother-in-law owned the armory ? (Objected to ; objec- 
tion sustained.) Witness, however, answered that he did not ; the check is first 
signed by the Comptroller, then by the Mayor, as usual. 

TESTIMONY OF JOSEPH B. YOUNG. 

Joseph B. Young sworn ; examined by counsel for defendant ; I am clerk of 
the Board of Supervisors ; I have the record of the board from the time of the riot 
down to the payment of this claim ; Hutchins or Woodward attended as clerk for 
the Eiot Claim Committee ; I did not ; there was no record kept of the proceedings 
of the committee, except the testimony and papers of each claim. 

Cross-examined — The names of the committee were Purdy, Davis, Weissman, Ely, 
and Blunt ; they were appointed August 7th ; the resolution of the board for the 
payment of the claims of Farley, and over forty others, was passed on the 20th of 
October, and approved on the 23d ; I think the Mayor and Comptroller were some- 
times present with the committee ; I think there was no rule of the board making 
these members ex-offido. 

TESTIMONY OF LOEEN JONES. 

LoREN Jones, next witness sworn, was six years a resident in this city ; in 1863 
he was employed in the armory in^the Second avenue ; made purchases of iron, 
steel, and oil, and turned over to the government all the arms it needed, attended 
to the business generally, was there up to the destruction of the armory ; had an 
interest of seventy-five cents on each gun delivered, on their sale ; had besides a 
salary for his services here ; the armorj^ was destroyed on the 13th of July ; it was 
part of my duty to make myself acquainted with everything relating to the busi- 
ness, as if it was my own ; m)'' knowledge was generally minute and definite ; my 
only duties were to attend to supplies of coal, oil, iron, or any arms to be delivered 
to the government, to see them delivered, and to see in a general way that every- 
thing was going on correctly ; I was there every day, Sunday included, fifteen 
hours out of twenty-four, for the first month of my superintendance, till Opdyke 
bouglit out Marston ; my duty was to see the foreman supplied with all necessary 
material ; it was on the 1st of December, 1862, Marston was bought out by Op- 
dyke ; an inventory was taken ; Opdyke had advanced some $65,000, for which 
chattel mortgage was taken ; on the 1st of December, when this money was ad- 
vanced, no examination was made as to the working of the business. 

Q. Do you remember the amount advanced to Marston ? A. Yes. 

Q. Was an inventory made ? A. Yes 

Q. How made ? A. By each selecting an appraiser of the value ; Mr. Opdyke 
selecting one, Mr. Marston another, both competent mechanics. 

Q. Was the stock purchased at the prices set down on the original inventory? 
A. My impression is some of the things were sold less than they appear on that 
inventory. 

Q. In what mode Avas the money paid by Opdyke to Marston for the machinery 
purchased 1st December, for $67,093 ? A. Mr. Opdyke advanced the money. 



f/ 



IT 

Q. Do you know anything of the balance which made up the total sum of 
$67,093 69? A. That was extra machinery purchased afterwards ; Opdyke paid the 
$65'.000 and Marston was to draw on him for the balance of $67,000. 

Q. Why did not the whole appear in the claim ? A. A part of it was stock, but 
the machinery left made S67,000 ; it had been used in the meantime, but the claim 
was made on the original valuation. 

Q. Had you conversation on the matter with Opdyke ? A. Yes. 
Q.Had he a foreman who was turned away? A. One was relieved. 
Q. What was the success of the business under the foreman ? A. It was not 
conducted to the satisfaction of parties interested. 

Q . Had tlie dissatisfaction anything to do with the want of profits ? A. That 
had something to do with it. 

Q. What was the pecuniary condition of the concern on 1st Jani;ary, 1863, sub- 
sequent to the purchase? A. It was about that time that a rough estimate was 
made of the affairs by myself and Opdyke, and from our figuring (a general estimate 
of the money advanced) we fouird that the business was not progressing, and I pro- 
posed to liim to have a change in the superintendence. 

Q. What did Mr. Opdyke say ? A. He said a change should be made. 
Q. State the conversation with Opdyke ? A. He said he would sell out at a 
loss. 

Q. At a loss of what? A. $25,000. 
Q. Did any person offer to take it at that ? A. No. 
Q. When did the foreman leave ? A. The 1st of January. 

Q. At the time Opdyke said he was willing to lose $25,000, how much had he 
then put in ? A. I don't know. 

Q. When did the new superintendent come ? A. Early in 'January. 
Q. How long did your services then continue ? A. To the destruction of the 
armory 

Q. Who was the new superintendent ? A. John Kane, who remained there until 
the annory was destroyed. 

Q. What ammunition was sold to the government at that time ? A. 10,050 
cartridges. 

Q. The day before tlie destruction of the armory, what amount of money had 
been advanced ? A. $183,000; something about $2,500 was due to the hands in 
the establishment. 

Q. State your movements and experience?! of the 13th July ? A. On the 13th, 
in the morning, I went to the armory ; everything was going on as usual ; I went 
_ down town for supi)lies ; did not see Mr. Opdyke ; got back about twelve o'clock ; 
found thirty -four policemen there ; they said they had come to protect the pro- 
perty ; the men were furnished with the guns we were making ; each policeman 
had a gun and ammunition ; I furnished and Mr. Kane furnished them ; they were 
in the lov/er part of the building ; the hands were discharged for the day — some 
sixty-five ; they were sent away, as the police were there to defend the building ; 
soon after an attack was made by the mob, wlio commenced beating on the panel- 
ing of the door ; the policemen cautioned them to retire, but the mob kept on 
battering tlie door, and then the policemen fired through the door ; the leading 
man was killed instantly and two others were wounded, and the mob left imme- 
diately. 

Q. How did they go ? A. They left as if they didn't expect to come back again. 
(Laughter.) 

Q. Did they come back ? A. No. 

Q. How long did you remain in the building ? A. Two hours. 
Q. Was every thing perfectly quiet ? A. Perfectly so ; there were no rioters to 
be seen anywhere in the streets ; I saw a good many women and children in the 
vicinity, but there were no men in sight who looked like rioters ; I remained there 
till an order came to the police to leave the building. 

Q. What did you do when the order came tothe police to abandon thebuildng ? 
A. I went to Captain Cameron, of the Twenty-second street station-house, and in- 
quired from him why such an order was sent. 
2 



18 

Q. What did you do then ? A. I left there and went to the Mayor's office in 
the City Hall. 

Q. Tell -what occurred between you and Mayor Opdyke ? A. The Mayor was 
not in his office, hut I saw Mr. Farlee there. 

Q. What did he say ? 

Objected, to. 

Mr. PiEREEPONT — This is the man who claimed and received the money. 

Mr. Field —That does not make him responsible in any way. 

Mr. EvARTS — As much as regards the safety of the armory as if Opdyke had 
said it. 

The CoTTRT — ^I don't think what Farlee may have said is testimony against 
Opdyke. 

Mr. PiEREEPONT — Tour Honor, I desire to ask the witness what Farlee said to 
him when asked for Opdyke. 

The Court- — There can be no objection to that. 

Witness — When I asked for Mr. Opdyke, Farlee told me where he supposed he 
was. 

Q. Where was that ? A. St. Nicholas Hotel. ^ 

Q. Did you go there ? A. I did. 

Q. State what occurred there ? A. I saw him there in the hall of the hotel ; I 
told him that the policemen had been withdrawn from the armory, and that I was 
desirous to have them ordered back there ; that if that was done I could liold the 
building, and. that I did not want any more help than the policemen that had been 
there in the morning to defend the building, if they could be ordered back ; he 
said that he had no power in the matter, and could do nothing in it. 

Q. What further did he say ? A. That was all he said with reference to the 
business. 

Q. What did he say with regard to anything connected with it — what did he 
^ay he would do ? A. The only other words were, that he said he had had nothing 
to eat during the day ; that he would go out and get something, and then he went 
into the dining-room, and I went down stairs. 

Q. Did he give you any directions to go to police headquarters to try and get 
the police sent back to the protection of the armory? A. No, sir ; as I was going 
home, after that, I saw the armory in flames. 

Q. When you next saw Mr Opdyke, and spoke to him about the fire, what did 
you say to him, and he to you ? A. I asked Mr. Opdyke how he proposed to make 
out his claim — how he would adjust his claim against the city ; he said he thought 
of making it out from his books, that they would show how much money he had* 
advanced ; that he did not know of any other way of doing it, as everything was 
destroyed in the building ; but in this way he thought he coiild get back the money 
he advanced, and he did not want anything more ; I reminded him that there 
were other parties interested who spent money and labor in the concern, and that 
by making out his claim that way, while he might get his money the others would 
not ; I suggested that a different mode of making out the accounts should be de- 
termined ; he wanted to know what other mode I would suggest, with my reasons 
first. 

Q. Was anything said about anybody being left out in the cold ? A. Yes ; 
in making out the claim by the books showing the sums that had been 
advanced, I said it would throw others out ; I suggested to him, as the police and 
city authorities had taken possession of the property with a view of defending it, 
by reason of which we had dismissed our workmen, by whose assistance we could 
otherwise have protected it ; and then their going away and allowing the property 
to be sacrificed in the unwarranted manner they did, it was a case in which the 
city should pay the full amount of damages accruing from it. 

Q. What next occurred ? A. He said he thought there was justice in my sug- 
gestion, and that it was a just and equitable mode of making out the claim ; I 
took a piece of paper and showed him that there had been five hundred guns com. 
pleted, and which would have been that day delivered to the government, as they 
were ready, and had been accepted by the government inspector, and that he should 
charge in the claim government prices for the guns — $24.70 — the contract price 



J^^ 



19 

which had been awarded to him ; that he should charge $24.70 for the unfinished 
ones, less the actual expense to complete them ; for instance, if a thousand guns 
required but two dollars each to complete them, to deduct that amount, and charge 
but $22.70. 

Q. There is a charge here of $13,870, in which each gun is charged at $13.87 — 
how was that made up ? A. I had nothing to do with making out the claim. 

Q What was the principle observed ? A. Mr. Remington had a claim ; McNeil 
had a claim, had advanced money, and claimed to have interest on it, and certainly 
I thought that I was myself entitled to something for the time I had spent, and the 
money I had laid out ; I thought these were just claims upon, and I certainly 
thought he would have to pay them, and that they would come to more than 
what he would receive by the way he proposed to make out his claim ; he then 
told me to see Farlee, and explain the matter more in detail to him ; the business 
wa« conducted in Farlee's name, who is the son-in-law of Mr. Opdyke ; he under- 
stood my plan. 

Q. Do you know the amount that was charged in that bill that was sent to the 
Supervisors for payment, and for which Opdyke, then Mayor, drew a check ? 
A. $110,000. 

Q. Which, together with the bill for machinery, amounted to how much ? A. 
$199,927. 

Q. How much could these guns, sold at the rate of $24.70 and destroyed by the 
fire, be duplicated at ? A. With all the necessary machinery and tools ready, they 
would be duplicated at $14. 

Q. Then the difference between these guns at $14 a piece and $24.70 amounts to 
$64,000 ? A. Somwhere in that neighborhood. 

Q. Then they could have been duplicated at $45,000 ? A. Yes, in an establishment 
all complete ; after the destruction of the building and its contents I traveled to 
different manufacturing places for the purpose of ascertaining what the actual cost 
of making these guns would be, and the average cost, from the estimates of different 
manufacturers, was from $12 to $15 ; Mr. Keene made out the formal account. 

Q. Have jou been paid your share of it? A. No, sir. 

Q. Have you had any altercation with Opdyke about it ? A. I have not. 

Q. State the amount of profit that Opdyke has thus made upon the guns, 
whether finished or unfinished? A. Some $60,000. 

Q. What upon each gun? A. Some $10.70 each. 

Oross-ezamined — Q. The profit to the concern was $10.70 a gun ? A. Yes. 

Q. But by the destruction of the manufactory they were prevented from getting 
that profit ? A. Yes, sir. 

Q. Was any portion of that charged against the city ? A. Not a dollar. 

Adjourned to ten o'clock next morning. 



THIRD DAY. 

THURSDAY, DECEMBER 15tH, 1864. 

TESTIMONY OF LOREN JONES. 

LoRBN Jones, recalled by the defense, testified that up to the time of the des- 
truction of the armory, $185,000 had been paid out by Mr. Opdyke on the establish- 
ment ; the claims against it amounted to $15,000 ; making a total of $200,000 ; 
the assets footed up at $171,000, leaving a difference of $29,000 ; these figures were 
not exactly the same as those shown by him to the Mayor, but nearly so ; had told 
the Mayor how the amount was made up; $46,000 was put down for the guns 
burnt ; this was at $14 a piece ; it cost a little more to make them at the factory, 
owing to the lack of some piece of machinery. 

Cross-Kcaminaiion—'E.i^ observations were not very extensive ; the carbines were 
valuable arms, (one of the guns was here handed to the witness ;) it was, he consi- 
dered, worth $25 ; at the time the factory was fired, about fifty a day were made ; 
the profit on each carbine was about $10.70 ; the profit per day would be over $506; 



20 ^ 

it was a source of that amount of revenue to Farlee and his associates each day ; 
the machinery -was capable of lasting for a long time without additional outlay ; the 
profits would be $50,000 a year ; machinery had largely increased in price ; since 
the machinery of the factory was bought it had increased twenty per cent. The 
machinery which Farlee and others put in a claim of $97,000 for, was worth twenty 
per cent, more under that estimate ; there was material enough to make 500 guns 
more of second qua,lity, which were not charged ; they would be worth from $3 to 
S5 less than that of the first quality ; the first outlay on the guns and machinery 
was not such a source of profit as that which resulted from their subsequent manu- 
facture ; the first 500 guns charged at $24.70 were in the factory at the time ; be- 
lieved the mode of estimating the value of the carbines was just and fair ; the 6.000 
carbines charged cost more than was claimed ; in the claim on that account there 
was no charge made for interest ; did not know of any ; the guns could have beea 
duplicated at Remington's ; the actual cost of each carbine, Mr. Remington stated, 
would be $15 ; it would take six to nine months to duplicate them ; the patentee's 
fee was $3 50 on each gun ; it had been $6 ; Mr. Remington said he would make 
them, but he did not say at what price ; Mr. Opdyke employed witness in the 
factory ; he gave witness his directions ;. had a claim against Opdyke and McNeil, 
jointly, for his services; the morning of the day the armory was fired saw Mayor 
Opdyke ; told him the police were in the building ; Mr. Opdyke said, I have no 
aiithority, I can do nothing ; witness parted with Mr. Opdyke, and when he went 
to the factory he found it in flames ; if Mr. Opdyke had sent mounted policemen to 
the factory, they might have been there before it was fired ; asked Capt. Cameron 
for a police force to go to the armory, but he replied he had none to spare, and that 
the men in the factory had better shut it up and leave it ; in his conversation with 
Mr. Opdyke he asked him how he intended to put forward his claims for damages ; 
he replied he meant to estimate them by his books ; witness was anxious to have 
the interests of others in the factory secured, and he believed the estimates made 
were fair ; liad been in conversation with Judge Pierrepont about the case ; told 
him all he knew about ; did not say there was anything unusual in Mr. Opdyke' s 
eyes at the time ; he looked at the newspaper when witness spoke to him. 

Ee-examinaiion. — Was in a room with counsel and Mr. Weed ; spoke of Mr. Op- 
■ dyke's looking down, and of his eyes ; did not know of the value of the material 
on hand for second-class guns ; the charge of 830,000 in the claim covered the roy- 
alty on the guns, or the fee of the patentees ; gave as one of the reasons to the 
Mayor for his estimate of the claim, that the men in the armory would get paid. 

Q. When was the royalty (or patentees' fees) on the guns payable ? A. When 
the guns were delivered. 

Q. For these unfinished guns, then, you did include the royalty in the claim, 
amounting to $6,000? A. Yes, sir. 

The amount received from the Government appears among the assets on the 
other side. It was not deducted from the $185,000 ; it was put among the assets. 
The cost of making these guns, for which the Government paid, was not deducted 
from the amounts advanced by Mr. Opdyke. 

TESTIMONY OF CHARLES McNEIL. 

Chakles McNeil, being sworn, was examined by Judge Pierrepont, on behalf of 
the defendant, and testified as follows : 

1 was a member of the last Legislature of 1864, and have been re-elected a mem- 
ber of the coming one from Queens County ; I live there. 

Q You had a relation with this factory of guns about which we have been 
speaking? A. Yes, sir; my interest, I think, commenced December, 1862. 

Q. Do you know of a suit in relation to it in the name of Mrs. McNeil against Mr. 
Opdylie ? A. Yes, air ; my interest in the factory was two dollars for each gun ; I ad- 
vanced $6,250, $3,750 to the patentee, and $2,500 on a chattel mortgage ; Mr. 
Opdyke, or rather Mr. Farlee through Mr. Opdyke, was tha man interested ; 
bought out the interest of Mr. Marston in the factory, and Mr. Farlee got my wife 
to sign off, and had the chattel mortgage canceled ; after the armory was destroyed 
by the rioters, I saw Mr. Opdyke and asked him about the claim on the city ; he 



?v^ 



21 

told me not to do anything about it, and Mr. Farlee and Mr. Keene would arrange 
that and make it all right, and that I should leave the whole thing in their hands ; 
there was to be an auction sale of the old material left after the fire, and I thought 
I might make something by going to it, but he told me he would rather have me 
keep away from it ; he would rather I would have nothing to do with it ; Mr. Far- 
lee made this arrangement with me about my having two dollars a gun ; after this 
interview, and after the money was obtained from the city, I sa.w Mr. Opdyke at 
his office ; he had sent for me before that, and so I went ; he said to me : " I un- 
derstand from Mr. Farlee, that he has made a contract with you to give you two 
dollars a gun ;" I said "yes ;" he said, "I will not stand that ;" Mr Farlee told 
me of it, anc^I gave him a very strong reprimand for making any such remark ; I 
told him the bargain had been made, and the mortgage had been canceled, and 
everything had been going oil under that arrangement in good faith ; I afterward 
saw Mr. Opdyke at his house, where 1 went with Mr. Amor J. Williamson. 

Q. Tell the jury what occurred there. A. Before commencing our conversation 
on the subject of the claim, Mr. Opdyke said that he wanted it expressly under- 
stood, that whatever was said in that room between them should not be afterward 
used by Mr. Williamson as evidence, and he would not go on unless it was under- 
stood ; I said I cared not how it was understood ; Ave agreed to this, and then Mr. 
Opdyke said he would tell his own story to Mr. Williamson, and I should not in- 
terfere with him, and then I should tell my story, and he would not interfere -with 
me ; so then he went on and told his story. 

Q. What did he say ? A. Oh, I could not tell it all ; it was about an hour and 
a half, I should think, that it took him to get through with it, and I did not in- 
terrupt him ; when he got through, I commenced, but I did not go far before he 
interfered with me ; I undertook to tell my story ; how that the bargain was made 
between Mr. Farlee and myself to allow my wife two dollars a gun ; that was the 
bargain I told Mr. Williamson was made with Mr. Opdyke ; Mr. Opdyke said " No," 
I never made any such bargain ; I asked him if I did not go down to his office, and 
if he did not say to me that Mr. Farlee had told him that he had made that bar- 
gain with me, and he had given him a reprimand for doing it ; he said, " Oh, nc 
Mr. Farlee did not tell me so ;" I then asked him what he reprimanded him for ; 
he said, " I did not reprimand him, I reprimanded you ;" " What have I done," 
said I ; " Why,'' said he, " you got Farlee to make this bargain with you ;" I 
took my hat and told him what I thought of him, and left the house. 

Q. What did you tell him you thought of him ? A. I told him he was a 
damned rascal and a damned liar, and I never wanted anything to say to him 
again, and did not want to stay in his house ; I took my hat and overcoat and left 
the house ; Mr. Williamson came out as I was leaving, and told me to come back, 
ar^d said Mr. Opdyke had said he would settle it ; I said I would not go back into 
his house ; that night after I got home Mr. Williamson came to my house and 
said Opdyke would settle with me and pay me the money, or words to that effect. 

Q. Did you meet Mr. Opdyke at Congress Hall after that, last winter ? A. Yes, 
sir. 

Q. What was said there between you ? 
Objected to on the ground that Mr. McNeil was not a partner of Mr. Opdyke as 
stated in the alleged libel. Objection svrstained. 

Mr. Pierrepont said it was proposed to prove that Mr. McNeil said to Mr. 
Opdyke, in conversation with this gun business, that he was a swindler. 

Excluded until it was proved that McNeil was a partner of Opdyke. 
Witness stated that the whole interest belonged to his wife, and that he only. 
acted for her. 

Mr. Pierrepont offered to put in evidence the complaint. 

The Court — So far as it is necessary to use the complaint to give point to the 
answer, it is admissible to put in the complaint. 

Mr. Emott— Read the answer. 

Mr. Pierrepont — I will first read the complaint, to which it is an answer ; that 
is the proper (vay to lay it before the jury, so as not to begin at the wrong end. * 

Mr. Emott — I object. 

The Court — I do not desire to listen to the whole of the complaint. 



22 

Mb. PiEEiiEPONT — Is there any objection to our stating that part of the com- 
plaint — Mrs. McNeil against Opdyke — claiming $1,700, her share of 'the profits 
and interests in the gun manufactory ? 

The CotraiT — There is no objection to that. I allow the complaint to go in, not 
as an affirmative evidence, but to be used so far in connection with the answer as 
the answer may be evidence of the admission. 

Mk. Emott — Your Honor wUl note our exception. 

The Court — Certainly. 

The complaint was then read to the point where the plaintiff claimed that he 
was the owner of the contract. 

The Court — I will charge the Jury that the man is not the defendant, except I 
find that he was a partner, and there is nothing in the evidence to go to the Jury 
upon that question of fact. It seems to me that if this man is a partner, or if there 
is any evidence of the claim that he is, I do not see that we can exclude that. I 
shall allow the evidence on this point to go to the Jury. 

Examination Resumed — Q. State what you said to Opdyke in the Congress Hall, 
in Albany, in connection with this matter ? A. I cannot tell all ; it is quite a 
long story ; I saw Opdyke in the morning, and I asked him if he was not ashamed 
' to show himself where I was, or to put up at the same house, after using me, or 
my wife rather, as he did, in cheating us out of the money. 

Q. — What did he reply to that ? A. He said you have sued me, and now get 
the money where you can ; he left me and went to breakfast ; I also went to break- 
fast, and we sat opposite each other ; after breakfast he walked out, and I walked 
out after him, and I boned him again ; among other things I told him he was a 
scoundrel and a rascal, and I wouldn't trust him for cents; I further stated to him 
that after all I had done for him — Opdyke at once asked me what I had done ; and 
I said, in getting Andrews to give you $10,000 towards your election ; and after 
all that, and all put together, you turn a deaf ear, and will pay nobody a cent. 

Q.— What did you mean by that, getting him $10,000 ? 

Mr. Field — Oh no ; we don't want that. [Laughter.] 

Q. [Eepeated]— Whatdo you mean by that ? 

Mr. Field again interposed amid much laughter, but the question was admitted 
by the court. 

A. The money he got from Mr. Andrews ; I now recollect that he said to me, 
" I didn't get that money from Andrews ; I got it from another power ; I didn't 
know what that power was, but that was his reply to me. 

Q. Did he state what that power was ? A. No. 

Q. You directed Mr. McNeil to bring this suit ? A. Yes, sir. 

Q. And this suit of Mr. McNeil's against Opdyke when this conversation took 
place ? A. Yes, sir. 

Now, tell the Jury all about this Andrews affair, all that occurred between 
you ? 

Witness — I should like you to put the question to me. 

Q. Well, subsequent to that conversation what was done with regard to the 
assigrmient claim ? A. There was nothing done at that time, but subsequently 
there was an assignment to Bernardus Hendrickson. 

Q. Do you know when this was settled ? A. I think two weeks ago, last 
month. 

Q. Do you know how much was paid Opdyke ? A. In the neighborhood of 
$11,000. 

By the Court — You mean the assignment of the claim of your wife ? A. Yes, 
sir. 

Q. Of this $110,000 how much was for money, and how much was for profit? 
A. I don't know anything about that settlement ; Hendrickson told me that he 
had received $11,000 ; I know nothing about it, for it was not settled with my 
consent, and I had nothing to do with it . 

Q. You never did consent? A. No, sir. 

Q. What was the amount advanced? A. $3,750 and then $2,500. 

Q. And the claim was $17,000? A. Yes. 

Q. That was the account of so many guns? A. — ^The claim was about 



T^- 



23 

$19,000, but there was a balance of $2,000 for which I gave my note to Marston, 
and which Opdyke cashed ; that was to be deducted from the $19,000. 

Q. That left you a claim of $17,000 ? A. Yes ; and some odd hundi-eds. 

Q. On what basis did that claim rest ? A. On the agreement of $2 a gun. 

Mr. Field objected, as the claim appeared in the complaint. 

The Couet — The only question is whether it is material to meet the allegations 
in the libel. 

Mr. Evarts — It is material to show that the claim of $17,000 was made out of the 
moneys advanced and the interest. Mrs. McNeil was entitled to draw out of the 
concern, and for her share of the profits on the manufacture of 7,000 carbines. 
And it is material on the idea that by the money he had received from the city, 
Opdyke had in his pocket profits on 7,000 carbines, and that if he had paid these 
$19,000 he would have paid Mrs. McNeil's interest on her share of the proceeds 
on that basis, just as he got it from the city. 

The Court — I think it is competent to meet this part of the libel if the city 
having paid handsomely and promptly, and he refused to divide the profits fairly, 
Mrs. McNeil commenced the suit against him. 

Mr. Field — Then they want to show that " Oily Gammon" did not divide the 
profits fairly. 

Mr. Evaets — Who do your refer to as Oily Grammon ? 

Mr. Field — Who did you refer to ? 

Mr. Evarts — I did not refer to any Oily Gammon . 

Mr. Field — Your client did, then. 

Exaviination resumed. — Q. How much was costs, and how much was profits ? 
A. I was to have, after deducting 25 cents, $2 a gun. These 25 cents were to go 
to Opdyke, toward paying him for the money he advanced over and above what my 
wife advanced ; then Farley was to have 60 cents, and'Jones 50 cents a gun, by my 
allowing Mr. Opdyke 25 cents, and 5 cents toward Farley, that gave Farley 30 cents 
and me 30 cents, and that left me $1 .70 a gun ; this money was not due to me until 
after the guns were made and sold . 

Q. You knew Mr. Andrews well ? A. Yes, sir. 

Now we come to the $10,000 matter between Andrews and Opdyke, and you 
go on and tell us all about that ? Well sir, I met Mr. Andrews, I think it 
was at the corner of Twenty-third street and Broadway, at an oyster house there, 
and Andrews said to me — 

Mr. Field — I object. Was Mr. Opdyke present ? A. No. 

The Court — Go to the question with Opdyke. 

Witness — Well I went to Mr. Opdyke and told him that Andrews would give 
him $10,000, that he could collect, or cause to be collected, $10,000 out of the 
Custom-house, if he (Opdyke) would go for Andrews for Surveyor of the Port of 
New York. 

Q . What was said about Stanton at this time ? A. Nothing at this time ; but 
he agreed to set Stanton aside and to go for Andrews. 
Q. How came you to say this to Opdyke ? 

Mr. Field objected, except he told Opdyke. 

Witness — I told Opdyke all. 

Q. Well, go on with Andrews. 

Witness— Hadn't I better finish up with Opdyke? [Laughter.] The fact is, I 
don't want you to put words into my mouth; Opdyke said to me, " Won't this 
Andrews cheat me ?" I said that, "I didn't know, I didn't think he would ; how- 
ever, if you want anybody else to help you through it, pick out your man and we 
will go to Andrews together," and he picked out Amor J. Williamson ; I then went 
to Mr. Williamson. 

Q . I want you to come to the time when you first saw Andrews, and tell us 
what passed between him and you ? A. Andrews told me that if I would intercede 
with Opdyke to go for him as Surveyor of the Port, he would collect or cause to be 
collected out of the Custom-house $10,000 towards his next election for Mayor, as 
Opdyke expected to run the next Fall. 

Q. Where did this conversation take place ? A. Twenty-third street and Broad- 
way, at the oyster house I spoke of. 



34 

Q. Where did you next meet Andrews? A.^^The next time I met Williamson 
and Andrews together, and in the conversation that ensued between us, Andrews 
again made the offer that he would collect, or cause to be collected, out of the Cus- 
tom House for Mr . Opdyke, $10,000. 

Me. Field— Was Opdyke present ? A. No. 

Mb. Field — Then I object. 

The Court — It is admissable, inasmuch as the wituess bore this conversation to 
Mr. Opdyke ; he brought a message from Opdyke to Andrews, or Williamson did, 
and he returned to Mr. Opdyke and communicated to him the result. 
■ Me Field — I cannot help the witness saying anything. 

Me. Evaets (warmly.) — I appeal to the Court if this is a proper 'way to con- 
duct a case ? 

The Court — It is not necessary to address these remarks to a witness. All that 
took place between the witness and Andrews, in the first instance, so far as the wit- 
ness bore it from Andrews to Opdyke, that is admissible. Then, after that, Opdyke 
directs this man to continue the negotiations on this very subject, and whatever 
transpired at that interview is undoubtedly admissable, he having communicated 
to^Opdyke. 

Examination resumed — Q. What did Opdyke say to you about picking out another 
man ? For what purpose was he to pick another man ?■ A. To go with me to see 
Andrews, and to make an agreement for him ; he was at that time about setting 
Stanton aside, and going for him (Andrews), for $10,000 ; Opdyke said that. 

Q. What was all that was said about the other man being selected to see An- 
drews, that you two should see Andrews, as he was afraid Andrews might cheat 
him? Did he say about that being satisfactory or otherwise? A. When I told 
Opdyke this story about Andrews, Opdyke asked me if he would cheat him ; I an- 
swered, and said I did'nt think be would ; that I did'nt know, but for him to get 
somebody else, if he pleased, to go with me ; I told him to pick his man, and he 
picked Amor J. Williamson as the man to go with me. 

The Couet — State what Opdyke said about Williamson to you. G-ive as near a 
as you can his words. A. He said he would pick Amor J. Williamson. 

Q. How did you know he chose him ? A. He called him by name ; I then went 
and saw Williamson and told him what Andrews had said, and what Opdyke had 
said. 

Mr. Field — I object to this. Witness does not say what Opdyke said about Wil- 
liamson. 

The Court — For what purpose was he chosen ? A. To go with me to Andrews ; 
to go and make this bargain with Andrews and me ; I told Williamson what Andrews 
had done, and what Opdyke had done^ and that Opdyke wanted us to go together, 
to conclude the bargain ; we saw Andrews at the same place, and I told him 
that Mr. Williamson had been chosen by Mr, Opdyke to come there' and see 
what could be done with regard to the bargain that was to be made between 
him and Opdyke to get him the situation of Surveyor of the Port ; Andrews 
then repeated what he said before, that he would give Opdyke $10,000, which he 
could collect, or cause to be collected, out of the Custom-house for his election, 
if he, (Opdyke), would lend Andrews his influence hi getting him the appoint- 
ment of Surveyor of the Port. 

Q. After that you saw Opdyke ? A. Yes ; Opdyke after that told me to tell 
AVilliamson that he wanted to see him ; he told me whenever this was done to tell 
Williamson he wanted to see him. 

By the Court — What response was made by you or Williamson to the offer of 
Andrews ? A. Williamson was to go to Opdyke and tell him what Andrews had 
agreed to do. 

Q. Who told you to communicate with Opdyke ? A. Opdyke told me to ask 
Williamson to come and report to him about the bargain that was concluded with 
Andrews. 

Q. Do you know whether Williamson did report to Opdyke ? A. Yes, sir, for 
afterward when I saw Opdyke I asked him if he had seen Williamson, and he said 
he had ; I then asked him if the matter had been satisfactorily arranged, and he 
said it was, and, in a few days after this, Andrews had his appointment. He came 



fs 



25 1 

back to New York and I was the first man he came to see, and he appeared grateful 
to me for bringhig the thing round as I had. 

Mr. Field objected to tlie evidence. 

The Coukt to witness— Go on and tell it right straight througli now ? 

Witness — When Andrews saw me he thanked me for my share of the business ; 
he said that Opdji^e had got him the position, and that he would carry out to the 
letter what he had agread to, that he would help me to anything ; that if I wanted 
to have any man appointed to name three or four, and he would have them ap- 
pointed to situations, he then went with me to Williamson to thank him, but we 
did not find him in his office, I think. 

Q. What did Andrews say to you when he first applied to you for your interest 
in the matter ? A. He asked me to get Opdyke to get him the appointment, and 
I said to him, what object will you make it to Opdyke if he gets you the appoint- 
ment ; you know that he has a man named Stanton, and he is trying to get 
the appointment for him; he didn't say how much then; I don't recollect whether 
it was he or I who first mentioned the S1G,000 ; that is all was about it ? 

Q. Who was this Stanton ? A. I don't know. 

Q. Was he in the Custom-Iiouse ? A. I don't Ivnow anything about him. 

Q. Was his name H. B. Stanton ? A. I don't know what his name was. 

Q. How did you know that Opdyke had a man of that name ? A. Opdyke told 
me ; he said he had been trying to get Stanton appointed ; but he thought he 
hadn't much chance ; at any rate he said that he would drop him, and 1 think he 
said, "I will go for Andrews if this thing is arranged to my satisfaction." 

Q. Did you go to Washington after that ? A. Yes. 

Q. Did you meet Opdyke or Andrews there ? A. It was a long time after the 
election ; Andrews never gave me any appointment ; he forgot all about that ; I 
brought my men to him many times, but he never gave me the appointments ; 
next I met him in the hall of Willard's Hotel, and I coamenced a conversation 
with him . I said : " You are not satisfied with cheating me, but you have cheated 
Opdyke, too ; you agreed to give him $10,000, but he says you gave him only 
$7,000 ; and lie said Opdyke got the whole $10,000 ; at that moment somebody 
tapped me on my shoulder, and I looked round and saw Opdyke ; he said : " Come, 
Charley,, and take dinner with me ; " I said : " No, sir, I don't want to dine with 
you ; I want to have some more conversation with this man." 

Q. Did Opdyke tell you that he got but 87,000 ? A. Yes ; he told me that in 
New York ; I asked him after his election if Andrews had given him the $10,000, 
and he said, " No, he only gave §7,000." 

Oross-examined hy Mn. Field. Q. You entertained the most friendly feelings to- 
ward Mr. Opdyke ?— A. Yes, sir, the most friendly in the world. 

Q. And you do still ? A. No, sir ; I should think not. 

Q. Then you have changed your feelings toward him ? — A. I should say so. 

Q. When did your feelings begin to change ? A. After, the burning of the gun 
factory. 

Previous to that you were on the best of terms ? — A. I should think so. 

Q. And you would not dine with him in Washington? A. No, sir. 

Q. You say that this property was your wife's property ? A. Yes, sir. 

■Q. Where did she get it? A. She got $5,000 from Hendrickson for this very 
purpose — for the gun business. 

Q. Did you borrow itj? A. I hired it. 

Q. Had your wife any'private property of her own ? A. Yes ; she had property 
she got from her father's estate ; I think from $1,200 to $2,000 ; and from her 
brother's estate also. 

Q. When were you married ? A. In 1831. 

Q. When did she get the money from the estate ? A. In 1852 or '3. 

Q. What become of it? A. I don't know. 

Q. Did you spend it ? A. I might ; I can't say that I did not. 

Q. What became of it? A. I don't know. 

Q. "Was it all gone? A. I don't say that. 

Q. Have you any idea whether it was gone in 1860 ? — A. I cannot tell, sir. 

Q. What came from her brother's estate ? A. Some $400. 



26 

Q. What became of that ? A. I cannot tell. 

Q. Did any of it remain in 1860? A. I should think it did. 

Q. In what shape ? A. With herself. 

Q. Do you think she retained some of the money ? A. I do mean to say 
that I think from 1850 to 1860 she retained some $400. 

Q. In what form did she retain it ? A. I don't know. 

Q. You don't know what it was? A. No. 

Q. In 1861 she borrowed this money from Hendrick<;on ? A. Yes. 

Q. Is he a relative of hers or of yours ? A. No. 

Q. Who asked Hendrickson for this money ? A. I asked once. 

Q. You were much in debt then ? A. Yes, and still am. 

Q There were a great many judgments against you ? A. Yes, and there 
still are. 

Q. Can you state for how much you were a bankrupt ? A. No, sir. 

Q. Can you state within $20,000 ? A. Well, I think it was within the neigh- 
borhood of $20,000 or $25,000, and I have been so for the last fourteen years. 

Q. When this money was borrowed from Hendrickson, did yonr wife take 
part in the borrowing ? A. Yes. sir. 

Q. Where did it take place ? A. In the first place I got that contract for 
Hendrickson to make the guns ; it was his money ; I got the contract three years 
ago this month ; I borrowed the money of Hendrickson, and after I came to New 
York my wife agreed to buy that contract from Hendrickson. 

Q. Did your wife see Opdyke about it ? A. I don't know. 

Q. How did she agree witli Opdyke ? A. I agreed for her. 

Q . Had she up to that time any property ? A. She had a silver set to the 
amount of $1,500 ; she had money, but how much I don't know ; and she had fur- 
niture — how much I don't know. 

Q. Was the silver or the furniture sold for this purpose ? A. No, sir. 

Q. Did any of his money go toward it ? A. No. 

Q. Your wife's note was given ? A. Yes. 

Q. Was not* this to guard against your creditors ? A. Olf ! no ; it was a matter 
of honor. 

Q. And you got your wife to swear to the complaint that it was separate pro. 
perty. A. — I did not ; a lawyer may. 

Q. Did you employ the lawyer ? A. Yes, I first spoke to him. 

Q. You are a member of the Legislature at Albany ? A. Yes. 

Q And you got acquainted there with Mr. Weed? A. I have known Mr. 
Weed, I think, for ten years ; not personally, but I have known him for that 
time. 

Q. When you were a member of the Legislature were you not very intimate 
with him ? A. No. 

Q. Were there any railroads piit through dr,ring yonr term ? A. There were 
some bills presented, but none of them passed. 

Q. Did you see him during your term in the Legislature ? A. Last winter I 
saw him in. 

Q. You say he had nothing to do with the settleinent of your suit ? A. Yes. 

Q. And you had not ? No, sir. 

Q. Is that paper signed by you ? A. Yes. 

Mr. Field offered in evidence a power of attorney, signed by Charles McNeil, 
and dated 23d November, 1861. 

Q. Is that the date the suit was settled ? A. I don't know. 

Q. Was that suit settled precisely on the terms Opdyke offered to you before 
the suit was commenced ? A. No, sir-ee. [Laughter.] Opdyke never offered to 
settle with me ; if he did, it was through a third party. 

Paper handed to witnsss. 

Q. Is that signed by Bernardus Hendrickson ? A . Yes . 

Q. Is that paper [paper shown to "witness] signed by your wife, Elizabeth Mc- 
Neil ? A. Yes, sir. 

Me. Field— I offer this in evidence, as the assignment of the claim of Elizabeth 
McNeil__and Bernardus Hendrickson ; also, an order substituting Hendrickson in 



m 



27 



her place. [Objected to and sustained ; papers excluded for the present.] When 
was the first agreement made between you and Opdyke with reference to the manu- 
factures of the carbines ? A. I don't recollect the time, but it was before we went 
to Washington to get the contract. Farlee went with me, the agreement was 
made finally on the day it was. made, and the writing will show what day, that day 
was; [laughter;] Opdyke's name did not appear on the contract ; when the agreement 
was made, Opdyke, Farlee, Mrs. McNeil and myself were present ; I cannot now 
recollect what was particularly said by any of the parties ; this was in Farlee' s of- 
fice in Wall street ; cannot recollect a word of what was said, but to collect the 
profit he was to receive on the guns manufactured ; the contract was not obtained 
at Washington in the form as was expected, and Farlee refused to have anything 
to do with it ; after we returned saw Mr. Opdyke in his own house; told him that 
the contract could not be got as we expected ; that we could not get twenty thou- 
sand contract, but we could get ten thousand gun contract by paying S7,500 ; told 
him all I had done, and asked him if he was willing to go in on halves ; we were 
to get the guns manufactured by Marston ; the original contract with Marston was 
$18 a gun. 

Q. Were you at the fire when the factory was burned ? A. Was there before it 
began ; went to the Mayor's office and told him that there had been a mob there, 
and wanted to know what he was going to do ; he appeared very much frightened ; 
knew that a claim had been made for the fire ; dont't think he told the Mayor 
that the claim was too small, nor anybody else. 

Q. You saw the Mayor in his of&ce ? A. Yes. 

Q. State what occurred between you ? A. Told me to meet him at his house that 
night, and Farlee would be there, when everything could be settled ; supposed he 
asked for a settlement and for the money. Declined to meet him and Farlee 
alone, but said he would pick out a man to go with him, a personal friend of Op- 
dyke, Mr. Williamson. There was nothing peculiar about the Mayor the day of 
the fire, but he looked a little queer always. 

Mr. Field commented on the opening of Counsel and said it was the most ex- 
traordinary speech he had ever heard. He would call counsel and client to account 
if everything asserted was not proved. 

The Court then adjourned to 10 o'clock. 



FOURTH DAY. 

FRIDAY, DECEMBER 16tH, 1864. 
CROSS-EXAJVnNATION OF CHARLES McNEIL, CONTINUED, 

On the opening of the Court, the cross-examination of the witness, Charles 
McNeil, was continued by Mr. Field, as follows: In the bargain for the purchase of 
Marston' s interest, witness acted on behalf of his wife in trying to get Marston to 
sell out to Mr. Opdyke for the price Mr. Opdyke offered ; witness succeeded by giving 
his note for $2,000 ; the transfer was made to Mr. Farlee for Mr. Opdyke's benefit ; 
witness had no interest in the transfer any further than $2 per gun ; understood 
nobody had any interest in it except Mr. Opdyke ; witness did no business particu- 
larly in the concern after that time, and especially after the foreman was removed ; 
witness was to have $2 a gun, less 30 cents, as Mr. Opdyke had invested $135,000 ; 
witness made this bargain with Mr. Farlee ; Mr. Opdyke afterward asked witness, 
and witness told him he had made such a bargain ; Opdyke then said he had repri- 
manded Farlee for making such a bargain, and asked witness to rescind it, and not 
consider it a bargain ; witness said : " No, I could not do it, for everything had 
been done according to that agreement ; the mortgage had been canceled before 
that ; witness's wife had insured before that,and it was all in Mr. Opdyke's name, 
and I certainly should not do anything of the kind ;" before this bargain was made, 
witness's wife's name was in the policy of insurance, and afterward it was removed ; 
afterward he saw Mr. Opdyke at his own house and he denied Mr. Farlee had ever told 



• 28 

Mm lie made such a contract ; " Why," said witness, " what did you reprimand Mr. 
Farleefor?" he replied, "I never reprimanded Mr. Farlee, I reprimanded you;" 
said the witness, " what for ?" he replied, " because you asked him to make such a 
bargain ;" witness then called him the name he did, of course ; witness did say Mr. 
Opdyke was a rascal ; witness supposed counsel had read the testimony. 

Counsel (Mr Field) made some remarks, and the Court remarked that counsel 
should not provoke the witness. 

Witness did say Mr. Opdyke was a liar and a rascal ; it was not for that he 
called Mr. Opdyke a swindler at Congress Hall, but because he did not give wit- 
ness the money ; Hendrickson has not paid over any money to witness, but has paid 
some to his wife, the next day, he believed, after he got it ; the first interview 
witness ever had with any person on the subject of the Siu'veyorship was with Mr. 
Andrews at the corner of Twenty-third street and Broadway ; it was about two 
weeks before ho got the appointment ; did not think they met by appointment the , 
first time ; it was in the outer saloon ; witness did not own the saloon ; had no in- 
terest in it ; did not borrow money. to fit it up ; this meeting was in the evening; 
did not recollect havicg met him up stairs in a committee room ; Mr. Andrews 
aslied witness if he would use his influence with Mr. Opdyke to get him the apr 
pointment of Surveyor of the Port of Ncav York ; witness said : "Mr. Opdyke is 
working for a man by the name of Stanton, and I do not know whether he will be 
willing to leave his friend and go for you;" Andrews said : " I think you can 
make it all agreeable with him, and I will do anything that he asks ;" witness said : 
" What object will you make it to Mr. Opdyke if he does drop Stanton to go for 
you ?" witness did not remember whether he or Andrews mentioned the ten thou- 
sand dollars first ; Andrews said he would give Mr. Opdyke, or cause it to be col- 
lected out of the Custom-house $10,000 if Mr. Opd3'ke would drop Mr. Stanton and 
go for him to get the appointment for Surveyor ; he said he would either collect 
it, or cause it to be collected, out of the Custom-house ; he said he would give it to 
Mr. Opdyke toward his election ; witness said he would tell Mr. Opdyke ; 
met Mr. Opdyke next day, at his store^ and had a private interview ; 
witness told Mr. Opdyke he had seen Mr. Andrews the night before, 
and he wanted witness to see Mr. Opdyke to get him to drop his 
friend Stanton and go for him for the Surveyorship, and that Mr. 
Andrews would give him $10,000 toward his election next Fall, as it was under- 
stood he would run for Mayor. Mr. Opdyke said, " Wont he cheat me ? ' Witness 
replied, "No, I don't think he will ; I think he will do all that is right, but if you 
want anybody else to help me, call in- your man a,nd let him go with me." He 
said he would choose Mr. Williamson to go with witness and see Mr. Andrews, and 
if the bargain could be made satisfactory he would go for Mr. Andrews ; witness 
did not remember anything else that he (witness) said ; witness saw Mr. Williamson 
at his office. No. 11 Spruce street ; Mr, Williamson and the witness went up that 
night and saw Mr. Andrew, at the corner of Twenty-third street and Broadway ; he 
was to meet Mr. Andrews there ; that was the next night after the first interview ; 
the three, Andrews, Williamson, and witness, sat at a table ; witness said, to Mr. 
Williamson that, Mr. Andrews had promised him, the night before, if Mr. Opdyke 
would leave his friend Stanton and go for him for Surveyor, he would collect, or c;iuse 
to be collected, out of the Custom-house, ten thousand dollars for Mr. Opdyke' s elec; 
tion ; Mr. Andrews said to Mr. Williamson, " That is correct ; I will do it ;" wit- 
ness did not remember what Mr. Williamson said just then ; witness' next went to 
Mr. Opdyke's and told him that Mr. Williamson had gone the night before and met 
Mr. Andrews, and that Mr. Andrews had agreed before Mr. Williamson the same as 
he did before witness, and that everything was all sati.sfactory ; Mr. Opdyke said, 
" Where is Mr. Williamson ? can I see him ?" witness replied, "Yes, I suppose so ;" 
witness went over and told Mr. Williamson Mr. Opdyke wanted to see him, and he 
started to go and see him (Opdyke); witness saw Mr. Opdyke the next day, he 
believed ; when witness saw him again, Mr. Opdyke said Mr. Williamson had been 
there and seen him and said it was all satisfactory ; witness was not present at that 
interview between Mr. Williamson and Mr. Opdyke ; spoke* to Mr. Andrews next 
after he came back from Washington ; Mr. Andrews got his appointment, witness 
thought, within a week, thought Mr. Opdyke told him in his interview he would go 
to Washington that evening to carry out this arrangement ; did not recollect going 



29 

to Mr. Opdyke's house while he was absent; afterward met Mr. Andrews at Mr. 
Opdyke's house the morning after Mr. Andrews returned; witness and 'Andrews 
walked down town together ; Andrews thanked witness very kindly for what he had 
done ; there was one more that he wanted to thank, and that -^vas Mr. Williamson ; 
on the way down, Andrews said he wanted to do something for witness, and would 
give him appointments for two or three friends ; they walked down to Mr. William- 
son's office ; Andrews had not previously promised him appointments for his friends, 
for he had not the of|}ce ; certainly he could promise to give appointments before he 
got the office, as he is the best promiser witness ever saw, and the poorest per- 
former ; thought Mr. Williamson was not in when they called at his office, and 
Andrews said he would find him ; he and Andrews separated on the corner of Nassau 
and Frankfort streets ; saw Mr. Opdyke a few days before his election coming from 
the Custom-house where he had been to get the money ; asked Mr. Opdyke if he 
had got his money ; Mr. Opdyke answered " No," or that he had got a part; wit- 
ness did all he. could for Mr. Opdyke's nomination ; no provision was made for the 
money in the event of Mr. Opdyke not being nominated ; next saw Mr. Opdyke at 
his house after his election; witness said in effect, " Did Mr. Andrews do what he 
agreed to?" "No," said Mr. Opdyke, "he did not;" " How much did he do ?" 
witness thought he said, ' ' seven thousand dollars ; ' ' none of the money was for 
witness, but all of it for Mr. Opdyke. 

Question hy Mr. Ineld — Did you do anything more than to ask Andrews to make 
the customary collection from the Government officials towards this election ? A. 
You may take it as you please : I asked him in the way I told you ; whether it is 
customary or not I do not know. 

Q. Did you take up a paper and figure up the amount of salaries, and the 
amount that could be collected at two per cent, from each? A. No, sir, I never 
did ; how many there were in the Custom-house I do not know. 

Q. Did you not know that Mr. Andrews and Mr. Opdyke were a good deal more 
confidential than you and Mr. Opdyke were ? A. I did not ; I should think he was 
not very intimate, as Mr Opdyke asked me when I told him, "Would he cheat 
me ?" [Laughter.] In the campaign of 1861, Andrews was not Mr. Opdyke's inti- 
mate friend ; witness was boss at that time ; witness and Andrews got the "People's 
party" to go 'for Mr. Opdyke ; both exerted their influence. 

The Court remarked that the witness was exhausted, and there had been a great 
deal of repetition and a great deal of time consumed. 

Mr. Field said that the cross-examination had not been as long as the direct. 

The Court said it ought not generally to be half as long. He made the remark 
that there had been a great deal of prolixity, tedious to the Jury and the Court. Is 
was due to the progress of the case that- they should proceed as promptly as was 
consistent with doing justice. 

Mr. Field — Knowing the desire of the Court to see justice done, I can only 
say we shall proceed as rapidly as possible, and when I have gone too far,~if you 
will tell me, I will abandon the case. 

The Court — These remarks are not due to the Court, nor should the counsel 
make them. 

Mr. Field — I will conform to all the rules of the court. 

The Court — I trust you will, and without this continual flinging at the Court. 
I dislike it. 

Mr. Field — There has not been any before, sir. 

The Court — Yes. 

Mr. Field — Well, I was not aware of it ; I have entirely misunderstood if there 
has been, because it has been wholly unintentional, and 'not in the least degree un- 
derstood. 

The interview at Washington occurred while Congress was in session ; thought 
it was in February ; Mr. Opdyke might have gone with him, but he was not cer- 
tain ; witness went on another business — for Mr. Opdyke, however ; witness was 
not conscious that was doing anything wrong in what he did. 

Ex-Judge Pierrepont submitted that questioning a witness as to his views of 
morality was not proper. 

The Court, after hearing some argument, allowed the counsel to question the 
witness for the purpose of eliciting evidence affecting his credibility. 



30 

Witness did not think anything about the right or wrong of the matter ; had 
held office under the City Government — about five years in the street department, 
and about five years under the tax commissioners ; never raised money from the 
employes to lobby for the tax commissioners ; did not ask Mr. Andrews to have 
the ten thousand dollars put into his own hands. After some more unimportant 
questions, the cross-examination closed. 

Re-direct by Ex- Judge Pierrepont : Witness was shown a stipulation of the settle- 
, ment of the McNeil-Opdyke suit, signed by B. Hendrickson. ? 

Never saw the paper before ; never gave direction or order to have such a paper 
made ; never heard of its being made until he came into court. 

Witness was shown a paper giving power of attorney to Mr. Hendrickson. 

Witness recollected signing a power of attorney, which Mr. Hendrickson said 
he would have to have to go into court ; Mr. Hendrickson brought him the paper, 
which he signed ; he was going into court on the morning of this suit of McNeil 
against Opdyke, and wanted this power of attorney to act in the case ; did not 
think Mr. Hendrickson said anything about settling ; did not give the witness any 
such idea to his knowledge ; never gave any authority, verbally or otherwise, to 
enter into this settlement ; did not know Hendrickson was going to settle it. 

Ex-Jddge Pierrepont was then about to question the witness about the business 
for Mr. Opdyke, on which he went to Washington. 

Witness went there for the purpose of selling army blankets for Mr. Opdyke. 

Ex-Judge Emott objected to the evidence as forming an attempt at justification 
on a separate part of the libel. 

After some discussion it was admitted. 

Witness stated Mr. Opdyke asked him to sell some blankets for him, some 
170,000 pairs, to the Government ; witness went to Washington, but did not' suc- 
ceed in selling them. 

TESTIMONY OF BERNAKDUS HENDEICKSON. 

Bernardus Hendrickson, sworn : In the fall of 1861 McNeil wished him to ad- 
vance some money to go into a goverament contract which he had got ; the con- 
tract was got by McNeil in witness' name. 

Witness then reviewed the history of the contract essentially, as was previously 
done. The power of attorney referred to was for the purpose of the McNeil-Opdyke 
suit ; witness did not tell McNeil he wanted it to settle the suit ; it was drawn up 
by Amor J. Williamson, at Mr. Opdyke's rooms in the Fifth Avenue Hotel ; the 
conversation with Mr. Opdyke at that time they both considered confidential, and 
he told Mr. Opdyke as far as he was concerned, It was a matter that never should 
come into court. 

Mr. Field — We will release him from that obligation. Next day he met Mr. 
Farlee, Mr. Williamson, and Mr. Opdyke at Mr. Opdyke's rooms, and talked the 
matter over in regard to the settlement of this suit ; witness told Mr. Opdyke he 
held the interest assigned in this suit, and was anxious to bring it to a close ; asked 
Mr. Opdyke what he proposed to give ; Mr. Opdyke said he had always purposed 
to give what profits were made with the money McNeil had put in ; as near as he 
(Opdyke) could calculate, there were two thousand dollars profit, and he was wil- 
ling it should go to McNeil ; he could not do any more than that ; next day he saw 
him again, and Mr. Opdyke said Farlee had reckoned up fifteen hundred dollars 
more, making some eleven thousand ; they finally agreed to settle at this sum ; 
witness did not tell McNeil he had done so ; did not think he knew anything about 
it until afterwards ; witness signed the stipulation. 

Counsel read the stipulation, stating that the suit should be' settled "on the 
precise terms offered by the defendant before the suit had been commenced. ' ' 

The paper was written by Mr. Opdyke's son, in Mr. Field's office ; it was then 
read, or appeared to be read, to Witness, who signed it ; witness thought he had 
said something to Mrs. McNeil that he was trying to settle this suit ; the 
McNeils first knew he had settled it when he paid Mrs. McNeil the money that 
afternoon. 

A long cross-examination by Mr. Field took place, but nothing important was 
elicited, It was all about the maimer of signing this stipulation. 



31 



TESTIMONY OF JOHN W. KEENE. 



John W. Keenb, sworn. Was engaged in the manufactory of anns, and has heen 
for twenty-two years ; went into thjs gun factory that was burned, in the middle of 
February, 1863 ; was in charge of the mechanical portion of it ; knew all that was 
going on in the factory ; knew what goods were in it, and all about it ; after the fire 
occurred, there was preparation to make a claim against the city ; Mr. Jones call 
upon witness in relation to making it ■ witness made up the claim as was presented 
to the city ; in making up that claim, the basis of value of a gun made, 
finished, and delivered ; the whole account was not made up on that basis. 

The witness entered into a long exposition of the items of the bill as he made it 
up, which could hardly be transferred to paper with much intelligibility. 

Q. In point of fact, did all the guns that were charged to the city cost all that 
they are charged. A. Yes. sir, and more money. 

Q. If Mr. Farlee had made up an account charging simply his outlay, would it 
have amounted to more than the account paid ? A. It would. 

Q. Of the carbines charged in this account there is no single arm upon which 
work had not been done in the factory ? A . No, sir. 

Q. You stated that the average loss is only about 6 per cent. ; when you allowed 
12J per cent, it was a variation to the disadvantage of Mr. Farlee ? A. It so appears 
, in the figures, certainly . 

Q. It increases the deduction from the contract price ? A. Yes, sir. 

Q. In making up the account, did you not omit entirely interest on the capital ? 
A. Yes, sir. 

Q. What rate of interest ought to be given to capital employed in the making 
of guns, considering its risks ? A. It ought to be considerably large. ' 

Q. A great deal more than seven per cent. ? A. Oh, yes ; it ought to be double 
that invested in that business . 

Q. There is no mention made in this calculation of the royalty to the patentee ? 
A. No, sir. 

Q. How much was that? A. That I cannot state positively; I understood it 
was $3.50. 

Q. Was there any other place in the country where these kind of guns were 
made? A. No, sir. 

Q. Was there any other place where it could have been made six months after 
the fire ? A. No, sir. 

Q. Was there any other place, in your judgment, where they could have been 
made at all without making new works ? A. Not without adjusting tools and ma- 
chinery ; certainly not. 

Q. It requires the adjustment of machinery and tools to do it ? A. Yes, sir, as 
all guns do. 

■ Q. On the morning after the fire, what could the machinery and tools which 
were thus adjusted have been replaced in the factory for, if it could have been done 
in an instant ? A. It couldn't have been done in an instant ; in the first place, it 
couldn't have been replaced therein less than nine months, at the least calculation ; 
at the time it was destroyed, we should have had to pay 85 per cent, in advance 
of what the machinery was then worth, replacing it in the time of nine months, 
which, added to $97,929, would foot up the machinery and the tools alone at 
$130,000. 

Q. And then at the end of nine months it would not be as good as it was before ? 
A. It would not be so pliable. 

Q. Then it would have required $130,000, or fifteen months' time to replace 
that establishment ? A. Yes, sir. 

Q . As to the guns, could they have been duplicated anywhere ? A. I do not 
think they could at that time. 

Q. Are you well acquainted with Eemington's establishment ? A. Yes, sir. 

Q. What would Eemington have made those guns for ? A. Twenty-two dol- 
lars ; he wanted twelve months to make the first delivery of a thousand guns. 

Q. Are you now employed by Eemington in his establishment ? A. Yes, sir. 

Q. At the time of the fire you were turning out guns at the rate of about fifty per 
day ? A. Yes, sir. 



32 

Q. Ill your judgment is the fair value of a finished gun like that the contract 
price, less what it would cost to finish it. [Objection offered and sustained.] 

Q. How long had you been in this establishment ? A. About five months. 

Q. When you took hold of it, it was in a low condition ? A. Yes, sir. 

Q. Had you been working at a great disadvantage until about the time of the 
fire, and at a much higher rate of cost than afterward ? A. In some respects 
we had. 

Q. At the time of the fire, all was in perfect working order ? A . I so con- 
sider it. 

Q. Was the machinery in the building adapted to anything else than the making 
of tliat particular carbine ? A. Yes, the milling machine, for instance ; the small 
tools were not adapted to any other arm ; but the machinery and general rule was 
adapted to a musket or r. breech-loading gun. 

Q. About what proportion of the whole was adapted solely to this business ? 
A. About one-third. 

Q. In this statement of $16.48 you swear that the guns from that time for- 
ward could be made at that rate, and not that they had been made at that rate ? ' 
A. No, sir. 

Q. Were the tools made in the manufactory for this particular purpose ? 
A. Yes, sir. 

Q. How long did it take to make them ? A. That I could not answer ; they had 
been running there over twelve months when I went there. 

Q. You could not tell how long they had been in operation ? A. No, sir. 

Q. What did you do with the account when you had thus made it up ? A. I 
left it with Mr. Farlee, I believe. 

Q. Did you at any time go before the Supervisors, with the account, to explain 
about it ? A. Yes, sir. 

Q. This is the account that was finally settled ? A. Yes, sir. 

Q. You have spoken of the waste of iron and steel ; was that iron and steel in 
the shop ? A. Certainly. 

Q. How did you buy it ? A. In quantity in the market. 

Q. What kind did you use ^for the guns ? A. I bought the best material we 
could find in the market. We used the English gun iron and steel of different 
descriptions from different manufactories. 

Q. When the fire occurred had you any of that iron and steel on hand ? A. Yes, 
sir. 

Q. How much had you on hand in the condition in which it was bought ? 
A. We had considerable more than is charged in that bill ; I could not tell exactly 
what we had ; independent to what we had worked up in parts, I think very likely 
there might have been two tons there, it might be more — all of that ; we had a 
third more iron than we had steef ; we bought it in large quantities ; we paid 13 
cents a pound for iron and 28 cents a pound for steel at that time. 

Cross-examined, hy Mr. Field. — Q. Were you before the Supervisors when this 
claim was under .discussion ? A. I was. 

Q. Were you examined at length ? Yes, sir. 

Q. For how many different days ? A. I think I was there three different cays. 

Q. Did Mr. Orison Blunt examine you ? A. Yes, sir. 

Q. Was he a gunmaker ? A. He told me he was. 

Q. He was one of the Supervisors? Yes, sir. 

Q. Did you explain to him exactly how this account was made up ? A. I did. 

Q. Did you tell him this was the contract price to the Government. A. I did. 

Q. That you took that and deducted what it would cost to finish ? A. I did. 

Q. How many of the Supervisors were present when this examination was going 
on ? A. Two or three in the room ; there were some other cases on at the time 
ours was ; I think part of the time there were two or more present. 
Q Did Mr. Blunt cross-examine you very closely ? A. Yes, sir. 
Q. Is there anything in this account, either as it appears in this paper, or as you 
have detailed it to the Jury, that was not explained to him ? A. I think not any- 
thing. 

Q. What directions did you receive from Mr. Opdyke about making up the ac- 
count or claim against the city ? A. None whatever. 



rf 



33 



Q. The services of this committee were public in the City Hall ? A. Yes, sir. 

Q. Had the committee counsel ? A. I believe they had. 

Q. And secretary ? A. I believe so. 

,Q. No counsel represented Mr. Opdyke on this occasion ? A. No, sir. 

Q. He was not himself there ? A. No, sir. 

Q. Did you make up the account according to what you supposed was just? 
A. I did ; if I had not, I should not have done it. 

Q. Have you any doubt about its justice now? A. No, sir; I would swear to 
it imtil I was blind. 

Q. Were all the materials charged in this account actually there? A. Yes, sir. 

Q. Were the prices charged there true? A. Yes, sir. 

Q. Are all the computations true ? A. Yes, sir. 

Q. What hiis been your experience ? A. I have worked some 22 years at the 
business in different parts of the country ; I have been employed in all the different 
armories, previous to the rebellion, in the States ; I have worked in Springfield, 
Harper's Ferry, Chicopee Falls, &c. 

Q. Do you recollect anything having been said by Mr Opdyke aboutthe cost to 
be charged to the city for machinery ? A. Yes, sir, I recollect my telling him I 
should add 25 or 30 per cent, to the cost of the machinery ; I believe it was more 
than worth it. 

/, Q. Have you any doubt, whatever, that the machinery and tools were worth 30 
per cent on the market value, over and above what was charged? A. Thirty-five ; 
it is my solid conviction that at that time they could not have been purchased for 
less than 35 per cent above the cost. 

Q. Does not machinery improve for the first few months ? A. New machinery 
is not near so good when first purchased as after it is run three to six months. 

Q. This machinery was all in perfect condition ? A. Yes, sir. 

Q. When you told Mr. Opdyke you thought he ought to add the increased value 
of this stock, what did he tell you ? He told me he would not allow it. 

Q. Did he give you any reason for not allowing it? No, sir ; I did not ask any. 

Q. Who helped you to make up this account ? A. Mr. Passett, the book-keeper. 

Q. Were all the books of 'the concern burned in the fire? A. All except the 
cash-book. 

Q. Did you attend the auction sale of the damaged articles? A. No, sir. 

Q. When the factory was going on, was Mr. Opdyke much there ? A. I believe 
lie was occasionally — once or twice a week. 

Q. Did he have any acquaintance with the details of the business ? - A. I think 
not. 

Q. Did he know the material on hand, or the state of manufacture in which it 
was? A. I think not. 

Q. Did Mr. Opdyke give you any other direction about making up this account 
except that you must not charge an increased price in the machinery and tools ? 
A. He charged me to be very careful and get it correct. 

Q . Did he say to you, from the fact that he was Mayor that he would not allow 
any claim to go to the city that was questionable ? A. It strikes me he did. 

Re-direct hy Mr. Evaris.—Q. What do you mean by saying the factory was in a 
low condition when you went there ? A. I mean that it had not been conducted 
as it ought to have been. 

Q. But was it in a losing condition ? A. I don' t know about the losses of the 
concern ; that I cannot say anything about, but this I will say, that it had been 
long enough in operation to produce more than that. 

Q. Its failure to produce would be necessarily a loss to its owners? A. Na- 
turally ; it would be an expense, certainly. 

Q. Do you not consider saying it was in a low condition equivalent to saying it 
was a losing concern, more than any other establishment of the kind? A. All 
establishments, particularly in gun business, are conducted in about the same man- 
ner ; I think that establishment had been conducted as well as any other of the 
sort. 

Q. How do you know about the management of that concern ? A. I don't 
know, only for the length of the time it had been going on. 
<t 3 



\^ 



84 



Q. Well, what did you mean by saying in a low condition ? A. I don't know 
exactly what you mean, except when I told you I thought it should have produced 
more than it had. 

Q. You say it was in perfect working order about the time of the fire ? A. Yes. 

Q. How long had it been in perfect working order before that ? A. Some three 
or four months, I suppose. 

Q. You say that in this statement of the arms, as you made it up, and as it was 
presented and paid for by the citj^, there was no account of the royalty on these 
incomplete arms ? A I did not take that into consideration ; I knew nothing 
about it. 

Q. What do you take into consideration in stating for the value of the market 
as $24.70 a gun ? A. Labor and material, and the necessary expenses to complete 
them. 

Q. What ! is labor and material to make the market price ? A. No. 

Q. I ask you as to all you did take into account in fixing $24.70, which you 
took as a basis for your calculation, how did you arrive at the $24.70 ? A. That 
was the contract price the Government was to pay. 

Q. Didn't that include the royalty the parties had to pay patentees ? A. I sup- 
pose it did ; I thought you asked me if, in making the claim, I calculated the 
royalty. 

Q. You were asked if the royalty appeared in the claim against the State ? 

Mr. Field— No, you asked him if the royalty appeared in the estimate of 
$16.48 a gun. 

Q. You have said that $16.48 was the cost of making guns there — material and 
labor as it was then going — how long had that been the cost ? A. We had not btdlt 
the guns for that ; they really cost more. 

Q. How long had $16.48 been the cost of manufacturing these guns, as you 
stated ? 

By the Court — How many days had you been bringing out fifty guns a day 
from that establishment ? A. Only for a short time before the fire. 

By the Court — That cost was based on the manufacture of fifty a day ? A. Yes. 
sir. 

By Mr. Evarts — Q. How long had $16.48 represented the cost? A. Probably 
we had been in a condition to run at that rate for six weeks or two months. 

Q. How long had the concern been in a condition to turn out guns at all ? A. 
About that length of time. 

Q. What would it have cost to cast a gun in that factory before it was in a con- 
dition to make any ? A. It would be hard to estimate. 

Q. During the whole six weeks or two months you were working the concern 
making guns, $16 48 was the cost of manufacture ? A. That was the figure on 
which the claim was based . 

Q . What do you mean by saying that these guns that you have put down at this 
price, and varying from $22 to $31, cost more than the sum you have stated ? Be- 
cause I believe they would cost more. 

Q. Explain what you mean ? A.I mean that in starting a new armory of any 
kind, in constructing machinery, in getting suitable tools ready, in taking in crude 
men and getting them systematized and adapted to their different branches of the 
work — all this takes time and money, and I believe these arms, as charged there, 
would cost a good deal more. 

Q. You mean, then, that starting a factory, getting it to the point of produc- 
tion at the rate of fifty guns a-day, making these arms, taking in the whole estab- 
lishment and working it on without profit up to that point of capability, would in- 
crease the cost beyond the sum charged here ? A. Yes, sir. 

Q. That is the idea ? A. Yes, sir. 

Q. You stated that you were before the Committee of Supervisors. "Who re- 
quested you to go? A. I was requested by Mr. Farlee to attend. 

Q . You stated that you thought this mode of making up the accoimt was right, 
or that you would not have made it ? A . Yes, sir. 

Q . And you swear now it is right ? Yes. 

Q . Where did you get the idea of making it out that way ? A. It was suggested ' 
to me by Loren Jones. 'ji 



<^// 



35 



Q . Did you ever attempt to make up an account of the crude materials burned 
up — bar iron, steel, barrels, rough stocks, and other portions of the purchased ma- 
terial ? A.I believe I figured out something of that kind in pencil. 

Q. Was that figuring ever presented? A. No; I don't believe anybody ever 
saw it, except, probably, Mr. Jones. 

Q . You say that you gave an account to that Committee. Answer all questions 
put to you. Have you looked at that pamphlet of your testimony since that time ? 
A. No, sir. 

Q. Turn to the sixtieenth page of that pamphlet, the second paragraph, begin- 
ning, " The Inspector that inspected the arms." That was the first parcel that was 
completed, was it not ? A. Yes. 

Q. The next is 500 carbines, all finished in parts, and ready to assemble ; on 
such work the men were all paid for the various parts at $22 70 a gun ; is that 
right. A. Yes. 

Q . Is that the way you stated the item ? A. I believe that is the next. 

Q, The next item is 1000 guns, also machinery, filed and stocked, at $21 30 per 
gun. You say, ' ' I arrived at the price at what the article cost, counting waste, 
power, and expenses." Is that right? A. Yes. 

Q. And so with the other items through the paragraph to the end. Is that the 
form in which you stated these facts to the Committee as to the manner in which 
this sum had been made up ? A. Yes, that is the form I stated it in. 

Q. You stated that Jones first suggested to you the idea of making out the ac- 
count in this way. Now, while making it up, had you any conference, or received 
any suggestions from anybody, Jones included? A. From nobody, I believe, ex- 
cepting the suggestion of Jones. 

Q. How about Farlee? A. Farlee was sometimes present, but he did'nt claim 
to understand anything about it. 

Q. Where was the work commenced, and who was present? A. It was finished 
in a building at the back of Exchange-place ; it used to be Mr. Hughes's office. 

Q. Did it take a great while to make it up in this way? A. I think two or 
three weeks. 

Q. And during that time Farlee was present ? A. Probably, I saw him once a 
day, and then once in two or three days. 

Q. You told him what was going on ? A. Yes. 

Q. How long was Jones with you ? A. I cannot say he was present at all, but 
I used to see him outside, on occasions. 

Q. When you had the work completed, to whom did you show it or deliver it ? 
A. To Farley. 

Q. Is this a copy of the paper as you delivered it to him ? A. Yes, that is a 
copy in a condensed form. 

Q. Now as to the first foreman ; what do you know about him ? A. I don't 
know anything about him. 

Q. His name was Knowlton? A. Yes. 

Q. What evil or injury was in the establishment when you went there? A. 
The work was not going on in as good condition as it might be ? I believe for the 
number of men engaged they were not doing as much work as might be done. 

Q. This was the loss of the establishment? A. No doubt about that ; it was at 
the expense of somebody. 

Q. When you went there first who employed you ; who did you see about em- 
ployment ? A. Farlee first, and then Mr. Opdyke. 

Q. What instructions, if any, did you receive from Mr. Opdyke ? A. Not any 
at all. 

Q. Did he say anything to you about the condition of things at the factory ? A. 
He told me things were unsatisfactory ; I believe I asked him about the guns ; what 
they were ; he said the same things they were talking about, or something to that 
effect. 

Q. Did he say anything about the loss he would be willing to sell out at ? A. 
He never did to me. 

Q. When you were before this Committee of Claims did anybody but Mr. Blunt 
exanaine you ? A. No. 



V ' 



36 



Q. Any person else present at the examination of you by Mr. Blunt ; A. Yes ; 
I cannot name the parties, but there were two or three around at the time. 

Q. Now as to the machinery and tools that entered into this claim? did you 
have anything to do with making up the estimate ? A. No. 

Q. You had something to say to Mr. Opdyke as to the valuation made by some- 
body that it was not as high, as it should be ? A. That was as to the machinery as 
it was before. 

Q. Now, did you say anything to him about the rate at which you would put 
these guns in the portion of the schedule that you would make up ? A. No, not 
particularly ; I don't know but something might have been said when he came to 
the office. 

Q. What was that ? A. I can say one thing about that — that he charged me to 
be correct. 

Q. Did you show him the principle upon which you were doing it ? A. 
Yes, sir. 

Q. In the same manner that you are showing me ? A. Just so. 

Q. And he desired you to get it correct ? A. That was his idea. 

Re-Cross Examined — Bv Mr. Field, In the . taking of your testimony was not a 
great deal that was said omitted ? A. I think so. . , 

Q. Is hot this the way it was taken? [Mr. Evarts objected.] 

The Court — It is competent to ascertain whether any of testimony was left out. 

Mr. Emott — rhey cannot put the general question as to whether that document 
contains all the questions and answers ; there is no question of verity ; nothing 
which binds any one. • These are a committee who employ somebody to make 
records of their proceedings and the original of that record is here. 
: Mr Evarts — Yes, and they are the basis of the action of that committee . 

The Court — I have no doubt that it is competent to ask that question. 

By Mr. Field — Is all that was said taken down as it appears there ? A. All that 
was of any consideration was, I think ; there may be some little things oinitted. 

Q Was not this the mode of conducting the examination ; you and Blunt dis- 
cussed the question first, and then Blunt would tell the clerk to write down so and 
60 ? : A. That was the mode of getting at the result ; we talked it over as two men 
would who were familiar with the matter, as Mr. Blunt and I were ; then something 
would be written down. 

Q. Was it your language or the language dictated by Mr. Blunt to the 
secretary ? 

Mr. Evarts objected. 

The Court — You are asked whether the testimony was taken down as you gave 
it, or as Mr. Blunt dictated it? A. I think the most of it was taken, down as I 
gave it ; I recollect a good deal of it here. 

Q, Was there not a good deal said between you and Mr. Blunt that is not here ? 
A. No doubt ; It seems to me that we talked a great deal more than would fill up 
the whole book. 

Q. Did you not answer his various questions for whole minutes at a time, and 
nothing of it would be written ? A. No doubt. 

Q. You are asked what Jones did in making up the accoimt ; did not Jones tell 
you the claim would be made larger? A. I believe he said that he did not think it 
was large enough. 

Q. Was there not a very considerable quantity of material destroyed not put in 
the account against the city ? A. I think there was. . 

Q. To what amount was material not charged altogether ? A. I think there was 
a lot of stock material not charged. 

By THE Court— About how much? A. Probably enough, to complete four or 
five hundred guns not charged against the city, and all destroyed. 

Re-direct — There was nothing important elicited on the further re-direct exa^^ 
mination. ■ ' 

By Mr. Emott — ^There were parts rejected. 
Q. Parts to make two hiindred guns ? A. Yes. 

Q. In what condition were they ? A. Nearly fiaished — naturally so, or they 
could not have been rejected. 



7/ 



31 



Q. Eejected for defects in the forging ? A. Govemment did not carry on an in- 
spection beyond the barrels. 

Q. Tou said something about the machinery and tools being worth 30 per cent, 
more than they went into the concern at ; did you mean that they were worth that 
more in this establishment, or worth it as a matter of sale in the market ? A. The 
question asked before, was whether they could be replaced for that sum, and I said 
it would cost 37 per cent, more than cost. 

Q. Did you say it was worth that much more to replace it in that establishment, 
or that it would sell in the market at that advance if the establishment was dis- 
banded ? A. I meant to say that amount, owing to the high price of stock and la- 
bor at that time, over and above that which ruled when the machinery was pur-- 
chased, it would have cost 35 per cent, more to replace it. 

Q. You said that the machinery could only be used for that particular manufac- 
ture without a change ? A. I said some portion of it . 

By Mr. Evarts — You said you were employed by Mr. Eemington — in what capa- 
city? A. Superintending the mechanical portion of the work. Q. Did you pay the 
men ? A. Yes. I draw the money and pay the men employed under me. 

THE WORLD NEWSPAPER. 

Mr. Emott handed to the Court a copy of the World newspaper of the 16th, and 
called attention to an article therein which he said was intended to influence the 

jury- 

The Court cautioned the Jury against reading any comments on the trial that 
might appear in print, and even against conversing with any one on the subject. 

The Court then adjourned to Monday, the 19th inst., at 10 A. M. 



FIFTH DAY. 

MONDAY, DECEMBER 19th, 1864. 

The trial was resumed this morning. There was the usual large attendance in 
court. 

TESTIMONY OP WM. F. BROOKS. 

Wm. F. Brooks, called for the defense, was examined by Mr. Pierrepont. I 
know Mr. Opdyke and Mr. McNeil ; I procured the gun contract in question from 
the Government ; Mr. McNeil was with me in Washington when I made it ; I rep- 
resented the patentees ; the royalty was to be paid to me, as their representative. 

Q. On*'fcie 1,000 which were made and delivered to the Government, what was 
your royalty ? A. In the original contract the royalty was $6 50 on each gun ; 
the contract was for 10,000 guns ; I made it with McNeil, as agent of Hendrickson ; 
subsequently that contract was turned over into another ; the royalty was then 
reduced to $3 50 ; after the first contract had run out, I had it renewed, and, in 
consideration of the renewal, I had to reduce the price $3 ; on the first 500 deliv- 
ered, the royalty was $6 50 each, amounting to $3,250 ; on the balance, 6,550 
guns, the royalty was $3 50 each, amounting to $22,925, making $26,175 ; under 
our contract, the'royalty was due us when the Government paid for the guns — not 
till then ; my contract with McNeil was for 10,000 guns ; after the fire occurred' 
the remaining 3,000 guns were not made ; I never got any royalty on these. 

_Q. How much did you receive? A. I received $11,068 as royalty; $7,500 of 
this I received at the time of making the contract ; subsequently I received $2,068 
in money ; I received the $7,500 from McNeil ; the $2,068 from Marston ; subse- 
quently I received $1,500 from Mr. Opdyke, but that was not in connection with 
this gun contract ; it was a private matter, but merged into this finally ; it was a 
payment on the royalty by turning a debt between us ; deductmg from $26,176 
the sum of $11,068 paid, leaves $15,107. 

Q. That, then, was the amount that you claimed on the guns which were paid 
for ? A. Yes, if the guns had been delivered to the Government ; this does not 
include the 7,000 guns not made ; I saw Mr. Opdyke in relation to it ; had not 
much to say to him; my conversation was mostly with Mr. Fatlee; my first in- 



\ 



38 

terview was with Farlee ; I met him once or twice at his office in "Wall street ; our 
next interview was at Mr. Opdyke's ; I went up for the purpose of making a settle- 
ment with them ; I think it was in November, 1863 ; I knew the city had paid ; 
I saw it in the papers ; Mr. Opdyke was present a short time. 

Q. What wag there said about its being a losing or gaining matter ? A. It was 
my impression at the time, made upon me by the conversation with Mr. Farlee, 
that if it was not a losing matter, it was not a making matter ; this conversation 
occurred at Mr. Opdyke's house ; Mr, Opdyke was not present during all of it ; I 
was conversing with Mr. Farlee, and Mr. Opdyke came in the latter part of the 
evening ; after he came we had little to say ; I simply suggested that I thought, 
under the circumstances, I should receive $10,000 in consideration of giving up 
the contract, and not obliging them to go on with it ; they thought that was too 
much ; the reason they gave me why they could not pay me $10,000 was that the 
money was not made ; we parted at that ; I subsequently called on Mr. Farlee ; 
he offered me $5,000 to annul the obligation between us, which I accepted, and I 
got the money on the 4th of December, 1863 ; the contract was then annulled, 
and I think I handed it to Mr. Farlee. 

Q. When you took the $5,000, did Farley or Opdyke tell you what they had got 
from the city. A. No^ they did not ; I knew the published statement of what 
they had received. 

A. Did you know that they had been paid by the city on the basis of the same 
price that the Government would have paid if they had been completed ? A. I 
did not ; for the $5,000 I gave them a release in full of everything ; that is all got;' 
I represented the whole of the patentees. 

Q. When you made this settlement, and received $5,000, would you have done 
that if you had known that they had received from the city, on the same basis as 
though they had delivered the guns to the Government ? 
Mr. Field objected, as immaterial. 

Mk. Evarts said it was offered to exclude any conclusion that the witness settled 
for the royalties, knowing they had collected them from the city. 

The Court ruled out the evidence. There is no point in the libel that implies 
that Mr. Opdyke has cheated the witness, or wronged him . 

Oross-examined by Mr. Field — The gun contracted for was a very good gun, fully 
worth all the Government gave for it ; can't say if Mr. Farlee thought he was at 
liberty to stop making the guns when he pleased ; I thought the contract obliged 
them to make the whole 10,000 ; I do not think I asked him to go on after the 
destruction of the building ; I told him I expected he would go on and finish it up; 
dont recollect his answer ; knew when the claim against the city was being made 
out ; I thought I had nothing to do with it ; the whole contract should3feve been 
completed by the 1st of November, 1863 ; I think I claimed from Farlee at one 
time the royalty on all the guns charged to the city ; I saw the number charged 
in a published document ; I saw how it was made out before I got my pay. 

Q. Before you went, to Mr. Farlee, you knew exactly what Mr. Opdyke had got 
and what he had got it for ? A. Yes, sir. 

Re-direct — By Mr. Pierreponf. Did you look into the agreement enough to 
know the principle upon which it was made up ? A. No, sir ; I did not know the 
details ; I saw the sum in the account, but did not know how they arrived at it. 
[Book shown witness by Mr. Field.] I saw the details so far as they were published 
in this book, before I got my pay [account on page 9 read in evidence from 
printed book.] 

TESTIMONY OF AMOK J. WILLIAMSON. 

Amob J. Williamson, sworn. Examined by counsel for defendant — I have been 
acquainted with the plaintiff six years ; during the fall of 1861 I saw him nearly 
every day ; for the last three years I have seen very little of him ; I have known 
McNeil very well for ten years; I have seen him almost daily for the last three 
years ; there was a time when I supposed McNeil was veiy intimate with the plain- 
tiff, judging from what I heard him say, and the fact that he brought frequent 
messages to me from the plaintiff; I was at other times sent by Opdyke to commu-, 
nicate with McNeil ; Opdyke was run for Mayor in 1859 and defeated, and in 1861 



'T'iL 



89 



and elected ; Andrews took his place as Surveyor before Opdyke was elected ; some 
ten days or two weeks prior to Andrews getting his appointment, I met McNeil, 
about 9 or 10 o'clock in the morning ; he said to me that Opdyke desired me to 
go with him (McNeil) and see Andrews that evening, at the corner of Twenty-third 
street and Broadway ; I inquired what the particular business was ; he told me that 
Andrews was willing to do something for Opdyke's benefit, if Opdyke would interest 
himself in his behalf for the purpose of securing the office of Surveyor of the Port 
of New York ; that he was willing to raise $10,000 out of the Custom-house, and 
Opdyke desired me to go with him and ascertain w-hether Andrews would fairly 
carry out this proposition ; in consequence of that meeting, I went to the place : . it 
was an oj^ster saloon ; we went into one of the private rooms, Andrews, McNeil, 
and myself ; I believe the first thing in order was a bottle of champaign ; after 
talking for awhile, McNeil said to Andrews , " It is about time now to commence 
business." I had no part in the conversation up to this time ; he said, "Now I 
understand you are willing, if Mr. Opdyke gets you the office of Surveyor, to raise 
$10,000 out of the Custom-house, to support his election for the Mayoralty next 
fall." Andrews says, " Yes," and not only that, but he was a friend of Opdyke, 
and would do everything in his power to secure his election — raise even more mo- 
ney to ^cure it, or do anything that he could do ; I suppose we were there about 
an hour ; that is the substance ; after the interview was over, McNeil inquired 
whether I was satisfied ; I told him I thought Andrews would carry it out, he 
seemed to be very earnest about it and in good faith ; he then requested me to call 
on Opdyke next morning and tell him that it w as all right. 

Q. As you parted at the door, what was said ? A. I think we parted in the sa- 
loon; I have no recollection of anything occurring at the door ; in the morning I 
called on Opdyke ; I found him in his private office at the store ; I told him I had 
been to see Andrews, as I understood, at his request, and the matter was entirely 
satisfactory ; believed Andrews would carry out in good faith, what he proposed to 
do ; he made no reply that I recollect, or simply '• yes ;" I think he simply quietly 
bowed his head (making a motion) ; I do not know that there was anything to be 
said ; somewhere about two weeks after that, Andrews came into my office and said 
he had got the appointment, and thanked me for my supposed agency. 

Q. What did Opdyke say, if anything, in regard to his having another candi- 
date ? A. Tliere was nothing said, at that interview, on the subject ; I had a con- 
versation with Opdyke some time previous to that — I do not know how long — in 
which he spoke of his support of Stanton for that office. 

Q. Did he say anything about Secretary Chase? A. He said, among other 
things, that he did not suppose that Mr. Chase, who was his friend, would make 
any appointment here without consulting him in reference to it. 

Q. What led to his saying that ? A. This conversation was in reference to 
Wakeman and Stanton ; Andrews's name had come up, and he spoke of him as a 
probable compromise candidate, as the others, probably, could not be appointed ; 
I think I objected to Andrews at that time, and told him I did not think it was 
safe. 

Q. Had Opdyke been nominated then ? A. He had not ; we supposed we had 
the thing fixed, though it was still in doubt. 

Q. After his election did you go to see him ; if so, state what occarred on the 
subject of Andrews, or the money? A. The only thing I recollect touching that 
subject, was a conversation at his store, I think, in which he complained of the 
Custom-house not having raised the money which they had agreed to ; my recollec- 
tion is that he said they had only raised $7,000 or $7,500, whereas, " as you know," 
he said, "they agreed to raise $10,000." 

Q. Were you at Mr. Opdyke's house after the fire, and did you meet Mr. McNeil 
there ? A. I was ; but I understand myself to be under obligation not to refer to 
what occurred ; I went to a meeting where all the parties present agreed that what- 
ever occurred should be left out. 

Q. Who put you under obligation of secrecy ? A. I think it was my own sug- 
gestion, as a friend of both parties ; I am not sure ; I know that we all agreed to it. 

Mr. Field —We release the witness from the obligation. 

Q. Now state what occurred. A. There was a discussion between McNeil and 



40 * 

Opdyke as to a disputed claim ; McNeil claimed that Opdyke was to pay him a cer- 
tain amount on a certain basis, wliereas Opdyke objected that it was not according 
to agreement ; McNeil went on and made his statement ; I do not know whether 
Opdyke commenced, or McNeil, but each went on to tell his story ; I suppose I was 
sitting as a kind of judge, to see if we could not reconcile this thing ; before they 
got through, however, the interview was broken up in jawing ; McNeil was very 
much excited, and said some hard things against Opdyke, and left the house ; I fol- 
lowed him to the door and tried to get him to come back, but did not succeed ; I 
did not hear McNeil's testimony. 

Q. Two or tliree weeks ago were you present at the Fifth avenue hotel when the 
subject of the McNeil was up ? A. I was. 

Q. Was that under injunction of secrecy ? A. No. sir. 

Q. Who were present ? A. Opdyke, Hendrickson, and Farlee, and, I believe, 
for a few moments, one of Opdyke' s sons ; this power of attorney is in my hand 
writing ; Farley drew it and I copied it, 

Q. Did Hendrickson say anything about McNeil's being unlikely to execute this 
power, if so, what? A. I do not recollect ; this paper was drawn up for the pur- 
pose ofcotnpleting the assignment, making it more perfect, as I understood ; there 
was something said-r-I .do not know whether by myself or Hendrickson-^about 
McNeil not being satisfied with this settlement — miglit refuse to sign. 

Q. In reply to that did Opdyke say anything, if so, what ? A. 1 think he sug- 
gested that McNeil might be told that this was necessary to enable Hendrickson to 
go on with the suit. 

Q. Did Opdyke at any time say anything to you in relation to any difficulty 
about getting this money out of the Custom-house ? A. He did ; I am not sure but 
that it was at the same time, (in 1861 ;) he claimed that Barney had treated him very 
unhandsomely in refusing to hand the money over to him direct — that he required 
the signature of the treasurers of the different organizations, whereas he himself 
had advanced money which this was to reimburse — advanced it to the general com- 
mittee ; that was in addition to his assessment. 

Q. Was anything said about Ullman in any of these conversations — any share 
he was to have in it ! A., I do not recollect his name being mentioned. 

Q. Were you present at the Fifth Avenue Hotel on the Saturday evening when 
Hendrickson was there, before this power was drawn ? A. I was not ; I was there 
on the day preceding — on Sunday , when I wrote that power . 

Q. Was anything then said about a previous conversation that occurred between 
Hendrickson, Opdyke, and Farley? A. I have no recollection . 

Q . Was there anything said about discovering proofs that were not discovered 
before ? A. There was something said about $1,500 that Farlee had discovered ; it 
was something that Opdyke and Hendrickson had been talking about before I came 
in ; Opdyke said he was willing to allow it in the settlement, provided, in examining 
his books next day, he found it to be correct. 

Q. Did you know how this money was brought from the Custom House to Op- 
dyke? Did he tell you ? A.' No, sir. 

Q. Did he tell you about going there after it? A. I think he spoke of having 
called on Barney in reference to it, and he refused to pay it, and required the signa- 
tures or receipts from the treasurers of the different organizations to whom Opdyke 
had paid it. 

Q. Is there anything more on either of these subjects that I have omitted ? A. 
Nothing I think. 

Oross-fxamined—Q. At the interview at Opdyke's house between you, him and 
McNeil, did not Opdyke offer to give McNeil, in settlement, all the money he had 
advanced with interest up to that time, and all the profits ? A. He did. 

Q. That was a distinct, positive offer made by him to McNeil at the time ! A. 
Yes, sir. 

Q. Was that before any suit was commenced by McNeil? A. I think so. 

Q, Was not the injunction of secrecy suggested in consequence of a suit being 
possible or probable, so that nothing should be said by which you should be made 
a witness ? A. Yes, sir. 

Q. At the interview on Sunday, did not Opdyke appeal to you in the presence 



o- 



7J 



41 



of Hendrickson, whether he had not made precisely that offer to McNeil before 
the suit was brought? A. He did. 

Q. And did you not say to Hendrickson that he had ? A.I did. 
Q. How did Hendrickson happen to go to Opdyke to settle ? A. I suppose he 
did so at my suggestion. I was subpoenaed as a witness by Hendrickson on the 
Saturday before the trial , and after receiving it I suggested to Hendrickson the 
possibility of settling without going to trial ; I was anxious to avoid being a wit- 
ness, and" I requested permission to go and see Opdyke, and see if I could not ar- 
range an interview ; I did so, and Opdyke consented to see him that evening ; 
Hendrickson went to see him, so he said, and he told me he wanted me to go next 
day, at the request of Opdyke, to his house, and see the thing settled ; I went, and 
found Hendrickson and Opdyke there. 

Q. Opdylce had not made any approaches to make a settlement ? A. Not to 
my knowledge. 

Q. Did he not tell yoii at that interview at the hotel that he would still carry 
out that offer, and that he would not pay one single cent more? A. He did. 

Q. Did he refuse to pay any interest from October, the time from which he had 
originally offered to pay it ? A. There was some dispute about interest ; I did not 
wholly understand what it was ; they settled without allowing it. 

Q. Did not Opdyke say he would not settle without having a release from Mr. 
and Mrs. McNeil and Hendrickson ? A. I don't recollect the statement as strong 
as that ; it was considered desirable, but not, as I understood, absolutely necessary. 
Q. Did not the suggestion about McNeil bemg unwilling to sign come from 
you ? A. I do not think it did ; though we were all interested in whatever was 
done, Opdjdsie suggested, when it was supposed there would be some difficulty, that 
McNeil might be induced to sign this paper on the supposition that it was to be . 
used in the suit on the following day ; I coincided ; I supposed there would be dif- 
ficulty in getting him to sign . 

Q. Did you suppose McNeil had any interest himself in the matter ? A. I did 
not know how far he might have an interest behind Hendrickson ; Hendrickson 
had power to settle. 

Q. The only interview you had with Opdyke about Andrews getting his office 
was after the meeting at the oyster saloon ? A. That was the only time I had any- 
thing to do with getting the appointment ; we may have talked about it on other 
occasions. 

Q. Was there anything said or done by Opdyke that, in' your judgment, was in 
any way improper, in which you were connected ? (Objected to ; question allowed 
for the purpose of impeachment ; exception taken.) A. I have never supposed so. 
Q. Has it not been the uniform custom to collect moneys of tbe employes of the 
Government ? A. We uniformly call upon them ; we do not always get it ; it is 
customary to collect at all elections from the Custom-house, by whichever party 
the offices are held. 

Q. Was Opdyke nominated before or after the November election ? A. After, 
I think ; he was nominated by two political organizations . I was not concerned 
with any of the committees of nomination. 

Q. Do you ^now that he declined for some days to accept ? A. I do not recol- 
lect ; it may have been so. 

Q. After his acceptance, was there an assessment made upon Opdyke ? A. I 
do not know of my own knowledge, though I, have every reason to believe it was 
so ; I was treasurer ; the money advanced, I understood, vras to the political com- 
mittees; I do not know the sum ; it was large, some $7,000 or $8,000 ; I have been 
Tax Commissioner for some years ; McNeil has been assessor under me, and we 
have been in the same office for a number of years ; I do not think I introduced 
him to Opdyke ; it may be so ; I have introduced many to him ; I think McNeil 
went to Albany, vdth others, to get the law passed extending the Tax Commis- 
sioners' term of office. 

Q. Did he not use all his efforts, as a member, to pass the bill in the next Legis- 
lature, after lobbying for it the year before ? Objected to— excluded — exception 
taken. , 

Q. Did you not know that Andrews had no power over the majority of the offi- 



42 

cers in the Custom-house ? A. I did not ; I did not know the number of officials ; 
I always supposed they were more in the Custom-house proper than under the Sur- 
veyor ; I know nothing about how the assessments are made there. 

Re-direct — ^The amount that Opdyke made up that he claimed was due to 
McNeil, was about $7,000, principal and interest, and about $1,100 as profits ; 
which he said he was willing to give McNeil — the entire profits ; Opdyke advanced 
his money to the committee ; the treasurer of one of the organizations the day be- 
fore the election came with Opdyke' s check ; the Custom-house had failed to res- 
pond to make up that money ; it was to be repaid to Opdyke. 

Q. How much besides those advances which were paid to him did he pay out 
of his own pocket ? A. I can only answer for myself ; I took him bills to the ac- 
count of $4,000, which he paid ; what he said to, the treasurer of the General Com- 
mittee I do not know ; I have always understood it was $1,000 — his assessment in 
one of the committees. • i 

Q. Did he afterward tell you he had got it ? A. I do not know that he ever 
did ; my information on that was derived from otherparties that he had got it after 
a good deal of trouble from Barney. 

Re-cross — The $4,000 was a separate matter ; the money refunded to him was 
for advances made to the committees. 

Q. At Opdyke's house did he not say he would go with McNeil to Paret, the 
book-keeper, and get the exact amount ? A. He did. 

TESTIMONY OF EGBERT C. HUTCHINGS. 

Egbert C. Hutchings, sworn. Examined by Counsel for Defendant. I have 
been a practicing attorney since 1860 ; I am now Asssistant District Attorney ; in 
1863 I was employed by the committee of the Board of Supervisors on riot claims, 
to take the testimony ; the claims were handed to the Comptroller and passed over 
to the committee ; advertisements were made in the newspapers that a certain num- 
ber would be examined on such a day ; at first the committee worked together, but 
it was found necessary to divide it ; two supervisors would take one claim ; there 
were five or six on the committee ; the claim of Farlee was numbered 2,008 ; there 
were about 3,000 in all ; Thomas C. Field was counsel for the city ; he did not act 
in all cases , he examined some important ones ; Farlee appeared when his claim 
came up ; Supervisor Blunt asked the questions, and I wrote down the testimony ; 
Blunt conducted the examination exclusively on the part of the city ; no counsel 
appeared for Farlee and none for the city ; I knew Farlee was a lawyer ; I think 
Blunt knew it ; I knew he was the Mayor's son-in-law ; I think Blunt knew it ; 
this paper (containing the testimony of Farlee), was written by me ; it is signed by 
Farlee , he said "I am the entire owner of the claim ;" the committee always re- 
quired the party presenting the claim to state that he was the owner ; Opdyke was 
not examined ; John W. Keene, was also examined, , and this is his testimony, taken 
by me ; I was careful to read over the testimony to the witnesses ; I took more 
eare with this than any other claim, on account of its magnitude ; when the claims 
were examined, the committee employed outside parties, insurance men, as apprais- 
ers, to examine them and report, and the commtttee took their recommendations 
and acted upon them ; it was not done in this casfe ; I suppose Blunt knew more 
about guns than they did ; the majority were so refined ; I do not kno-w whether 
this omission was by direction of Blunt ; the 'claim was allowed, beihg indorsed 
$199,700, and signed by Purdy, Oct. 14 ; I was present when it came before the 
committee ; I do not remember whether that of Wakeman came at the same time ; 
I think Opdyke was present on Wakeman' s^ claim, also that of Brooks, the clothing 
man, also a portion of the time on Farlee's claim ; I think he voted on Wake- 
man's ; I think the Comptroller and all the committee were present at Farlee's 
claim : there was a discussion ; Blunt said that he had examined it, and he recom- 
mended it to pass ; something was said about deduction — that every claim had been 
reduced, and this ought to be ; I think Blunt stated that it was 'just, as it stood ; 
after some discussion, I think Opdyke stated that he told Farlee to be very particu- 
lar in making this claim out, and that it not being reduced would reflect censure 
on the committee, more than upon himself ; that he had a great many political 



^ 



43 



enemies ; though assuming it was indifferent to him, still it might reflect censure 
upon the committee ; I do not recollect that anything was said about Farlee's be- 
ing his son-in-law ; the whole claim was $207,062,21 ; I think the Comptroller sug- 
gested that $1,000 should be taken off; some suggested different amoimts ; there 
^ were no particular items figured out ; there was no computation, ia fact ; Purdy 
wrote out this allowance on the outside, and it was presented to the Board in the 
form given in the book now shown. 

Cross-examined — I was not coimected then with the District Attorney's office in 
August, 1863, nor with the Board of Supervisors, except in this way ; I understand 
the Mayor and Comptroller to be members of the Committee, from the fact that 
they were sent for at the first meeting ; the report of the Special Committee to 
audit the claim are all similar, except the first ; I have no recollection of any other 
member of the committee sitting to hear the testimony in^this case than Mr Blunt; 
I have never compared this printed report with my manuscript ; I never saw it till 
last Friday; I recollect distinctly Farlee's saying he was the owner; I am 
positive he used the precise words, because I was particular to see that the wit- 
ness so stated ; I thought it proper to be done on account of assignments of 
claims. 

Q. Was it not because you saw that the legal owner or representative of the 
claim should appear, so that when the claim was paid and the release obtained, all 
parties would be bound by it ? A. That was the object ; there were conversations 
between Farlee and Blunt ; I do not recollect any at this particular stage of tbe 
examination ; I put down the answers in the language of the witness ; I cannot say 
whether he answered yes in this instance ; he exhibited some documents ; I cannot 
say whether more than one ; something was exhibited in connection with a person 
by the name of Marston, I think ; a purchase from him, I believe ; I cannot recol- 
lect specifically any other paper ; whether it is in the minutes I cannot recollect. 

Q. Had you not seen in the papers, at the time, that Opdyke was called the 
owner of the factory ? A. I had seen that ; I knew also, where I lived, that it was 
called his armory ; I think the committee had been in session from five minutes to 
an hour when Opdyke came in ; they might have examined other claims ; I do not 
recollect any reasons being stated for sending for him ; I do not know whether he 
came when he was sent for at the first meeting ; I do not know what "assembling 
of guns' ^ means; I would turn to Blunt, and psk him, "Is this testimony ?" I 
would tell him when he was going too fast ; I understood his manner very well. 

Q. Does this entry mean that the charge is $22.75, or that the workmen were 
paid at that ? A. I can't tell ; there is nothing to enable me to say what the mean- 
ing is, except as it is here ; I do not know why the appraisers did not make an 
examination of this claim ; I should say that Mr. Blunt was a gunmaker, and was 
supposed to know more about guns than the appraisers ; it was the duty of the 
appraisers to visit the premises and see what special injury had been done ; they 
did that in Mr. Wakeman's case. 

Q. Do you think Mr. Opdyke voted on Mr. "Wakeman's claim ? A. That is my 
impression; I don't recollect what day that claim was passed upon ; I think the 
Comptroller voted ; he was opposed to certain items in the claim ; my impression 
is, that when the discussion of this gun claim came up, Mr. Opdyke was sent for ; 
Mr. Blunt said he was satisfied with the claim ; I do not think there was any for- 
mal vote taken until the motion upon the amount which is audited there ; I do 
not think Mr. Opdyke was there when the vote was taken ; I think he left very 
soon after the suggestion I have mentioned ; I have no recollection of his stating 
he had an interest in the claim ; don't recollect that he said why he withdrew ; 
my opinion was that he did not desire to vote on it, as he was connected directly or 
indirectly in interest in it, Mr. Failee being his son-in-law ; Mr. Opdyke said that 
he had a great many political and personal enemies, and that the fact of this claim 
not being reduced would reflect upon the committee ; don't recollect his words, 
but my impression is, that it was not so much himself as the members of the com- 
mittee he thought would be censured ; I recollect the claim of a man who worked 
in this factory, for tools ; I think Mr. Blunt then examined into the particulars of 
the destruction of the building ; I don't know how long the investigation took of 
this Farlee claim ; Mr: Blunt was occupied more than one evening : we sat an hour 



sN 



U 

and a half or two hours at a tune ; my impression is that the meetings on this 
claim were not consecutive. ■• ' 

Re-direct — It was the rule that claims should be verified by the owner, except 
where a party appeared by power of attorney ; they were examined as to ownership, 
and what they paid for the property, and all about their claim ; I resided in the 
neighborhood of the factory ; can't say when I first heard of its being called Op- 
dyke's armory. 

TES-HMONY OF ELIJAH F. PDKDY. 

Elijah F. Purdt was sworn and examined by Mr. Evarts : Am one of the Su- 
pervisors of thLs county, and President of the Board ; have been a member of that 
board since its organization, in its present form, in 1857 ; have been re-elected for 
second term of six years ; was President for the first two years of the organization, 
and then two years elapsed before I was President ^gain ; have now been President 
for three years ; the riot of 1863 was brought to the notice of the Board of Super-, 
visors by a communication addressed to the board by the Comptroller, which, upon 
my motion, was referred to a select committee on August 7, 1863 ; resigned my 
place on the special committee October 20, but the resignation was not accepted, 
and I was requested to withdraw "it ; did not act with the committee after the 20th 
of October. 

Q. When was the last meeting at which, you acted ? A. It was either at the 
meeting at which this claim was passed, or at the meeting at which Mr. Wakeman's 
claim was passed. 

Q. Do you recollect whether both were present on the same day ? A. I do not ; 
ruy memory is not distinct ; I was under the impression that both were acted upon 
at the same time ; I requested Mr. Hutchings to keep a record of the proceedings, 
when claims of so important a character as this were passed upon ; he informed 
me that he did, but they were mislaid or lost, taken out of the box. 

Q. What is your impression, that they were passed on the same, or on different 
days ? A. I am speaking exclusively of the action of the special committee which 
had their action in the room up stairs. My best impression is that these two claims 
were acted upon, but that one was not definitely settled, but reconsidered after- 
ward. 

Q. What part did you take in the examination or passage of this claim of 
George W. Field ? A. None whatever ; I mean in the examination of the evi- 
dence. 

Q. When the evidence was completed, did you take any part in any discussion 
concerning the claim before the committee ? A. I think I did. 

Q. When was that? A. I think it was on the day of the certificate, Oct. 14, 
1863, but I am not distinct upon that point. 

Q. What occurred at that meeting which you were at, concerning that claim ? 
A. Mr. Blunt reported the result of his examination ; myself and my colleagues, 
I believe, equally confided in Mr. Blunt's judgment in relation to this matter ; Mr. 
Blunt had this matter under his entire examination ; I had great confidence in Mr. 
Blunt's judgment, his knowledge of guns, and the value of them, and I think it 
was on my suggestion that this whole matter was referred to Mr. Blunt to make 
the examination ; he made a report allowing the full amount of claim ; various 
propositions were made to reduce it, and I think I made the inquiry whether the 
person appointed by the committee to examine these claims, after we had closed 
one examination, were to make further examination, and inquire into the facts and 
circumstances, and see whether the amount could be reduced, and I think I was 
informed not. ' 

Q. To whom do you refer ? A. Frederick E. Ely, Richard A. PkCdding, the former 
President of an Insurance Company, and Mr. Lee had been, and Mr. Bridseye, who, 
I had also been informed, had formerly been connected with an Insurance Com- 
pany ; the others I knew myself, and I think I suggested their names myself. 

Q. Was any inquiry made whether the city and county had been represented by 
counsel in this claim ? A. No, sir ; I think not ; I do not recollect about that ; Mr. 
Fields was appointed as legal adviser to the board, and Mr. Hutchings being a mem- 



C/ 



y.'f- 



45 



ber of the profession, I supposed that had been attended to ; I presumed Mr. Hutch- 
ings would guard the city and county interests. 

, Q. Were you aware of the fact, that counsel had been appointed to represent 
the county in these claims generally ? A. Certainly ; Thomas C. Fields was to be 
the legiil adviser of the board, and appointed by the committee. 

Q. Did you know of Mr. Fields acting in various cases ? A. Yes, sir. 

Q. Did the question of striking off something from Farlee's claim come up, and 
what was said ? A. I do not remember who made the proposition ; I think I stated 
distinctly that I could not vote for it, in its present shape ; it was suggested that 
*all claims had better be passed on, on securing the sanction of all the members pre- 
sent; and it was assented to that a reduction should be made. 

Q. Do you remember anything that was said or done by Mr. Opdyke about 
striking off ? A. I do not ; my memory has been somewhat refreshed by hearing 
the testimony of Mr. Hutchings ; the Mayor at times attended, and the Comptrol- 
ler ; but I think Mr. Hutchings is mistaken as to their being members of the com- 
mittee ; the Board of Supervisors cannot go outside of their own body to appoint a 
committee ; these gentlemen were sent for ; we were exceedingly anxious to pro- 
tect the city's interest, and to have these gentlemen to consult upon what was passed 
by the Board; the Mayor has the veto poweT, and can reject whit is passed by the 
Board ; I know these gentlemen did attend, and my own impression is, that they 
were invited to attend when we passed upon claims ; they were much engaged and 
it was difficult to get them to attend. 

Q. When this matter of striking off from his claim was discussed there, do you 
recollect what reasons were given why something should be stricken off? A. I do 
not ; my impression is, that Ave had reduced other claims, and it might be said we 
were governed by partiality in passing a claim in which the Mayor's son-in-law was 
interested ; I did not know anything about the justice of the claim, except what 
Mr. Blunt said. 

Q. The connection of Mr. Farlee and the Mayor was known ? A. I think Mr. 
Blunt said : " This is Mr. Mayor's son-in-law ;'' it was known to me. 

Q. What was finally determined on ? A. They reduced it from Mr. Blunt's re- 
port, $207,000— $199,700. If my memory serves me, there were several propo- 
sitions made ; the proposition to reduce it to this sum seemed to meet the favor of 
most of the members. 

Q. There was no computation of any particular items ? A. Not within my 
recollection. 

Q. Was this subject of its not being passed before these five insurance men 
otherwise spoken of than as j'^ou have stated? A. I do not recollect its being 
discussed ; there was no discussion ; I did not vote on the question ; the claim 
was reported on 20th October, on which day I resigned ; my impression is that 
the Comptroller proposed one reduction and Mr. Ely another. 

Cross-examinalion by Mr. Emott. — You stated that your recollection, was that 
Mr. Opdyke was sent for to attend the proceedings of the Committee, or that 
he was invited to be present ? ■ h' 

Mr. Evarts — Not at that meeting. 

Witness — It may be that it was. 

Mr. iiMOTT — What is your recollection about it ; was he not invited to attend 
the meeting ? A. I cannot say now ; I know I was anxious that the Mayor and 
Comptroller should both be there ; think the proposition that they should be in- 
vited to be present was mine, though my memory is not distinct on that point. 

Q. Did you know of your own knowledge that Opdyke was directly or indirectly 
interested in that claim? A. I recollect Mr. Blunt saying that the claimant, 
Farlee, was the Mayor's son-in-law. 

Q. JDid you understand that the Mayor had a pecuniary interest in it? A. I 
heard he had advanced money to the business, but I don't know what his interest 
in the matter was. .1 

Q. You had previously some conversation with Mr. Opdyke about the claim ? 
A. Yes, I think I had . 

Q. That is about its being such and such a.claim ? A. Yes, I think I had. 

Q. How often did you see the Mayor at the meeting of the committee ? ; A. Not 
very often. 



46 

Q. Was he not specially invited there on those occasions when you saw him 
present ? A. I think he was ; I cannot recollect distinctly now. 

Q. Did you not propose to see him, particularly because you were informed that 
he had an interest in this particular claim ? A. That may have been the case ; my 
recollection with regard to sending for him and the Comptroller is not very distinct, 
except when it first came up for consultation, I was very anxious that these gentle- 
men should be present. • i 

Q. That was some time before it was passed upon. How long had the commit- 
tee been in session ? A . They met in August, immediately after its appointment. 

Q. And you held meetings every day ? A. Not every day. 

Q. Did you not get your impression of Mr. Opdyke's interest in the matter by 
his advancing, or was it from your conversation with him ? A. I ihink so, and 
from my conversation with Mr. Blunt. 

Q. You say that no computation was made of the terms? A. Not to my re- 
collection. 

Q. You had entire confidence in Mr. Blunt as to the manner he investigated and 
allowed the claim ? A. I had. 

Q. Therefore the reduction proposed had to be made in a gross sum ? A. I don't 
know what motives prompted others. 

Q. There was a question about $200,000 ; do you say that sum was not named 
by the Comptroller? A. The original sum Avas $200,700. 

Q. You do not mean to say that the Comptroller made particular allusion to the 
other sum, but merely to reduce this original amount? A. I don't know who made 
the special proposition to reduce, but the question to reduce was discussed in the 
committee . 

Q. Was that all ? A. Various amounts were proposed ; one gentleman proposed 
one amount, one another. 

Q. But no one spoke of the $200,700 as of any particular or special importance, 
except that that was the siun reported by Mr. Blunt as due to the claimant ? A. I 
don't think so. 

Q. And that sum was not expressly referred to ? A.I think not. 

Q. Except by Mr. Blunt himself? A. Yes. 

Q. In the propositions to receive it, was there anything said about so large a sum 
going before the public ? A. There might have been. 

By the Coukt— Was there any mention made or reference to that precise figure ? 
A. I cannot say that was the precise sum. I could hardly recollect one sum, 
where claims were for millions. 

Q. Yon were present at the meeting of the committee that day, although you 
declined affirmatively to sign the vote ? A. Yes, when the claim came to pass the 
sub-committee. 

Q. State whether Mr. Opdyke did not withdraw before the vote was taken on 
the claim ? A. Certainly he did. I saw him leave his seat, go round the room, 
and supposed he left. 

Q. What reason did he give for leaving ? A. My impression is that he said : 
"Gentlemen, you know my relationship to this claim, and it would be indelicate 
for me to act or be present while you are considering it." Now, that is my impres- 
sion, though I cannot recollect distinctly. 

Q. Did he not decline distinctly to take any part or action in the committee ? 
A. He must have declined, for he left the room. 

By the Court — He yas not a member of that committee, as I understand it. 

Witness— He was not a member of ^ the committee ; we had no right to go out- 
side of the Board of Supervisors for a member. 

The Court— When he came in on any of these occasions did he come to or with 
the committee, or did he take any direction in the action of the committee ? I 
recollect distinctly that he did in one case vote for a claim. 

Q. Did he merely advise, or did he vote ? He voted. 

Q. Was his vote recorded ? A. I told Mr. Hutchings to record the VQte ; I 
have a memorandum of the votes that were given on that claim. 

Q. Do you recollect what that claim was ? A. 

Q. Do you think he voted on Wakeman's claim? A. He did. 



/ 



47 



Q. Did you raise the question of his right to vote ? A. I think not. 

Q. Do you recollect the vote on that claim ? A. Very nearly. 

Q. Was there a majority of the vote in favor of the claim on that vote ? A. No. 

Q. What was the vote in favor of the claim ? A . Orison Blunt and the Mayor. 

Q. Against it ? A. The Comptroller, Ely, and Purdy. 

Q. And you think that neither the Mayor or Comptroller had a right to vote ? 
A. I have not said so. 

Q. Do you say so now ? A. It is a matter of opinion ; my opinion is that they 
were not members of the committee, they were merely invited there. 

Q. By the Couet — Was the Mayor in the habit of acting on the committee ? A. 
He came there often . 

The Couet— And acted with the committee ? A. Yes ; but not to vote ? 

Q. Did he vote on any other occasion ? A. I think not, and that was my rea- 
son for telling Mr. Hutchings to record his vote, and make a memorandum of it on 
that qpcasion . 

Q. Did he sign the reports ? A. No . 

Q. Did he ever attend the meetings of the Board of Supervisors as a member ? 
A. No ; but I think I recommended that both the Comptroller and the Mayor 
should be invited as I conceived their advice would be beneficial, as I believe the 
city might otherwise be subjected to loss ; I thought his presence beneficial not 
only in tliis matter but in the matter of volunteering. 

Q. Was there counsel present, to advise the committee? A. No; I did not 
say that. 

Q. Was not Mr. Opdyke's conduct with reference to the claim highly 
honorable ? A.I saw nothing in his conduct to censure. 

Q. With regard to the claim of Wakeman ? A. I saw nothing in the Mayor's 
conduct to censure in any respect. 

Q. How did his conduct strike you in regard to this claim of Wakeman ? A. 1 
saw nothing to censure in his conduct. 

Redirect hy Mr. Evarts — Q . The committee, from the commencement of its organ- 
ization, invited, or in some way acquired the co-operation of the Comptroller and 
Mayor ? A. I thoiight their presence advisable in order to facilitate the business, 
and that no delay might occur to cause suits against the citf ; the veto power 
existing in the Mayor, claims might be paid and my advice acted on. 

Q. And the gentlemen came there often and sat with the committee ? A. I 
cannot say how often they were there ; I know they came there. 

Q. You say that you knew of the relationship of Mr. Farlee, the claimant with 
the Mayor ? A. Not of my own knowledge ; I knew nothing about it, but was in- 
formed of it. 

Q. You were informed that Farlee was son-in-law to the Mayor ? A. Yes ; my 
first information on that subject came from Mr. Blunt, 

Q. You were first informed of it in connection with this • claim, and before the 
claim came up before you ? A. No. 

Q. But for being so informed, would you have known of any connection exist- 
ing iDetween Farlee and the Mayor ? A. I think not. 

Q. You said something having heard that Opdyke made advances to Farlee 
in connection with this business ; who did you hear that from 1 I think I heard 
it from the Mayor himself ; my interview with the Mayor had had n()t been of the 
most friendly character ; previous to that I had some business at the Mayor' s office, 
but whether he sent for me, or whether I went myself, on official business, I don't 
now recollect ; I think some conversation then took place, but I cannot speak 
distinctly about it ; Mr. Blunt, I know it was, who informed me that Farlee was 
the Mayor's son-in-law. 

Q. Do you know of any other interest the Mayor had in this matter, beyond the 
interest he might have in his son-in-law ? A. I can't say. 

Q. Who was the claimant, of your own knowledge ? A. I don't know ; I never 
looked into the claim at all. 

Q. Did you ever hear it stated before that committee, at any time, that Opdyke 
had any other interest in the claim than as the father-in.law of Farlee f A. Not 
before the committee ; the committee toerely discussed the various claims as they 
came before it, and as reported by the sub-committee. 



48 

Q. Did you ever hear it stated in that committee, or in the presence of any 
member of that committee, that Opdyke was otherwise connected with this claim 
than that Farlee was his son-in-law ? A. I don't think I did; but I cannot say dis- 
tinctly ; I do hot wish to be understood except as speaking from my own know- 
ledge merely. , 

Q. You had heard from Mr. Blunt, or from the Mayor, about advances. Did 
you know of your own knowledge that advances had been made by the Mayor ? 

The Court — He says he had not. 

Q. Can you state if any communication was made to you Avhether there had 
been any advances made before the passage of this resolution or claim ? A. I do 
not know that I had, although I wish to be understood distinctly that my recollec- 
tion is not perfect. 

Q. Did you ever hear the amount, in dollars and cents, of any interest, by way of 
advances or otherwise, by Opdyke, in the claim before it was passed ? A. No, sir. 

Q. Did you, at the time the claim was passed — claim of $200,700 then reduced 
to $199,700 — know anything of the terms or the principle on which the claim was 
made up ? A. Nothing whatever. 

Q. Was there any statement before the committee when passing the claim, re- 
specting the items or principle on which the claim was made up A. Not to my 
knowledge. 

Q. You never read the evidence in support of the claim ? A. I never saw the 
printed book. 

Q. Was the evidence read before the committee at all ? No, I believe not ; I 
don't recollect distinctly now. 

Q. You stated, in answer to a question, that at the time this occurred you saw 
nothing in the Mayor's conduct to censure ? A. Nothing on that occasion. 

Q. And you say you 'knew nothing of the principle on which the account was 
made up? A. Nothing whatever. 

Q. You knew nothing of the Mayor's pecuniary interest in it ? A. Nothing 
whatever. 

Q. Was not the Mayor auditor of the claim by the charter? A. That charter 
has nothing to do with the Board of Supervisors ; the Board is allowed by law to 
admit and allow claims ; the Mayor approves the ordinance ; then it is sent to the 
Comptroller, who, by law, has authority to reduce the claim, but none to add to 
it. 

Q. Then the application came from the Comptroller to the Supervisors that they 
sh6uld act — not from the Supervisors to the Comptroller ? A. Not at all ; the 
Comptroller sends a communication, with the various claims and losses which he 
thinks advisable should be acted upon by the Board of Supervisors ; I made the 
motion to that effect, and it was referred to the select committee of the Board, and 
that committee has acted ever since. 

Re-examined by Ex-Judge Emott. — Q. Did I understand you to say that you had 
no information, previous to the time when this claim came before the committee of 
the Board of Supervisors, that Opdyke was concerned or interested by advances of 
money or otherwise in it ? A. I did not say that. 

Q. In the conversation you had with the Mayor, did he not allude to having a 
large interest in the claim, or that he had advanced a large sum of money on it, 
and that he could not wait, or that it would be inconvenient for him to wait, or 
something to that effect, going to show that he had a large int(!rest in it ? A. My 
communication or conversation with the Mayor was very limited for nearly a year 
and a half ; after that we became more intimate, and when he sent in his commu- 
nication to the Board of Supervisors, I generally replied to them ; I cannot say that 
our intercourse was of a very friendly character until within some sis months of the 
close of his term of office. 

The Court. — You are asked if you did not learn of this interest of the Mayor's 
from the Mayor himself? A. My impression is that I did, but I cannot say defi- 
nitely that I did, as I do not now recollect all the particulars. 

, Q. Did he say anything with reference to the action of the Board, or of the com- 
mittee, that they should well consider the particular claim ? A. It may be that he 
did ; I wished to consider the small claims first, so that we might establish a prin- . 
ciple when we came to pass on the larger claims. 



49 

A. In that connection did not Mr. Opdyke in conversation with you speak of 
this claim coming on, and express the desire that it should be acted on as 
promptly as justice to the other claimants would permit, on account of his large 
interest in it ? A. We had a conversation with regard to, it, but the precise natute 
of that conversation I do not now recollect. 

Q. State the substance of it. A. From what he said to me I understood : that 
be had made advances on it, although even as to that I cannot swear positively. 

Q. Did he not speak of it as a large interest, or of the largeness of his interest 
in the claim? A. He might, and yet I- cannot say that he did. • \- 

Q. With regard to the ownei-ship of claims, was it customary to discuss fhaJP 
question in the committee, or did they confine themselves merely to the discussion 
of the amount to be allowed ? A. The first question entertained by the committee 
was in reference to the rightful jownership of the property. 

Q. Was there anything said about the ownership of this claim when its merits 
w^re discussed with reference to the ownership of it, and the amount that should 
be allowed ? A. I don't recollect now what occurred in the passage of the claim ; 
I was somewhat excited at the time, as I did not like the way the claim was carried 
through 

Q. Di^ not Mr., Opdyke distinctly give the Supervisors to understand that he; 
withdrew from the committee on account of his interest in the claim ? A. Whether, 
it was on account of his own int-jrest in it, or on account of his relationship to Far-f 
ley, I cannot say. 

Q. With regard to the Wakeman claim, don't you recollect that after it was 
passed at a certain amount that it was reduced and he refused to take it, and that 
subsequently a larger amount was obtained? A. We passed the claim reduced by 
several thousand dollars ; the claim was then reconsidered ; I was not present then, 
iand when I found it out, I recollect distinctly asking the Comptroller. 

By the Court — You were asked whether Wakeman did not refuse to accept th*' 
reduced sum? A. T was so informed. ' ■• 

Q. And the Ccxse was reconsidered ? A. Yes, and it was afterwards increased. ■ 

EXAMINATION OF SMITH ELY, Jk. 

Smith Ely, Jr., examined by Mr. Evarts — Was a member of the Board of Su-- 
pervisors ; recollected the claim of G. W. Field being before the committee ; that 
case was under investigation with regard to the other claim ; I recollect the wit- 
nesses being under examination by Mr. Blunt. 

Did you take any part in conducting or hearing the examination ? A. I took no 
part, except that I sometimes listened to the evidence ; I did not know except by 
general r«port, that the claimant, Farlee, was the son in-law of the Mayor ;. I was 
not present at the consideration of the claim until the next day it was passed ; 
the matter came before us on the recommendation of Mt. Blunt ; it was I who 
proposed to reduce the amount of the claim to $199,700 ; the Mayor was present 
when the Wakeman claim was discussed, and he wished that the claim of Farle e 
should go through the. same vigorous ordeal ; the claim rested principally, as tq its 
recitude on the recommendation of Mr. Blunt. .., 

The witness was not cross-examined, and the court adjourned uutillOo'cloplci 
aext day. ' , ' , .::.,;'.,', , 



SIXTH DAY. 

TUESDAY, DECEMBER 20tH, 1864. 

TESTIMONY OF, JOHN KEYSER. 

John Keyser, sworn. Examined by counsel for defendant. In 1861, 1 was on the' 
Eepublican Central Committee ; its duties were to collect moneys, distribute them, order 
elections for delegates under the Jurisdiction of the State Central Committee; no money 
was collected from the Custom-house in 1861, for the State election, with. the exception 
of one or two individuals ; for the Mayoralty electicfn we receiV^ed $3,000. 

4 . : 



50 

Q. What was said and done by Opdyke ? A. I went to Opdyke about the ^,00<) ; I 
Baid it was necessary to have that, as they had not raised the money in the iCustom- 
house ; to pass it over, and if he would give me his check for $2,000, 1 would advance 
$ljOOO on his personal guarantee, if they did not pass the $3,000; he agreed to that; 
shortly after the election, Opdyke came to my office— T was then Registrar— and told me, 
that Barney refused to give him that check for $3,000, without my indorsement or re-' 
ceipt ; I told hira that made no difference, I would indorse it over to him ; he then re- 
marked that he didnotaskBafneyfor any receipt when he wenthis security as Collector: 
a young man brought the checks to me, and I indorsed them to Opdyke, and called on 
him and got his check for the $1,000 that was to come to me ; there were two or three 
checks from the Custom-house, amounting to the $3,000. 

Cross-examined. The money. was all paid after the election from the Custom-house ; 
the $3,000 check might have been given a day or two before the election, or a day or two 
after ; it strikes me it was after I got the $1,000, as Opdyke's assessment as candidate 
for the Mayor ; the $2,000 was in anticipation of money that was to come from the Cus- 
tom-house ; it was appropriated, but they had not made the collection appropriated 
for the Mayoralty election, or Charter election; there were tew officers run, and the 
candidate for Mayor was to go to more expense than any other ; the Charter election is 
not always the most expensive ; I was told that no money for the State election had 
been collected ; none came into my hands ; the expenses of the State election are partly 
paid over by the State Committee ; there was no Governor election , we thought there 
was occasion for collections, and made up heavy collections for the country ; Dickinsou 
T&,n for the Secretary of the State ; the County Committee assessed themselves to get 
money enough to print tickets ; we got no outside help scarcely. 

Be-direct. There was another committee called the People's Union, and other com- 
mittees that I don't remember ; Dr. Bradford was chairman of the People's Union, and 
after Mr. Williamson ; I think Churchill was chairman of the Citizen's Committee to aid 
Opdyke's election. 

TESTIMONY OF HIEAM BARNEY. 

HiKAM Bakney, sworn. Examined by counsel for defendant. In 1861 I was Col- 
lector for the Port of New York ; Opdyke ran for Mayor; Gunther and Wood were the 
other candidates ; a meeting of the citizens was held on the 26th or 29th of November, 
and they appointed a committee, of which T. G. Churchill was chairman, to promote the 
election of Opdyke ; I received and applied the money collected at the Custom-house ; 
on the 5th of December, I drew a check payable to the order of Keyser, Treasurer, for 
$3,000 for the use of the Central Republican Committee ; and on the same day a check 
for $5,000 to the order of Churchill, Treasurer ; I sent the first to Keyser, and delivered 
the second ; Opdyke called on me about the money; he stated that he had made large 
advances to the committees for the purposes of election, and desired to know how much 
would be received from the Custom-house; either then or subsequently, he requested 
that I should pay the moneys to him ; I stated that they were raised for the purposes of 
the committees, and I thought it was proper the checks should be drawn to them and 
they should see about the application, and they were so drawn. 

Q. What did he say to that ? A. I don't recollect what he said in reply ; perhaps, to 
repeat what he had previously said, that he had made the advances and the money pro- 
perly came to him ; no riloney was raised for the State election, on the 6th of January ; 
I paid the balance of the money raised, $1,482 52, to Churchill, as treasurer; I drew all 
the checks in that way — to the order of the treasurers ; I think I had only one interview 
•with Opdyke between the election and the last payment. 

Q. Ho\V happened you to pay the $1,432 afterwards ? A. I understood that the ex- 
penses incurred by the committee were large, and that all the money not needed by the 
Central Committee would be properly applicable to these expenses ; the Churchill com- 
mittee had nothing to do with State affairs. 

Q. Were the officers and clerks of the Custom-house requested to pay the money ? 
A. When it was proposed to make a collection, as usual, I issued a printed circular; 
the substance of it was this : That it was usual to make annual contributions by the 
officers and clerks for purposes of election ; that they had not had an opportunity of 
making any contributions that year, and that opportunity would now be afforded to 
contribute what they would do voluntarily ;. that no coercion would be used ; that na 
officer or clerk would' either have any claim for retention on account of contributions, 
nor would be liable to any disabilities or dismissals on account of refusal ; that the con- 
tributions must be voluntary ; and that I would undertake to see to the application of 
the moneys ; they did not all pay ; a large number did not. 

Q. Did you state that it was customary to make contributions from the Custom-house 
for the Mayoralty election? A. I did not. 

Q. You knew that it was not customary? A. I did not. 

Q. Didn't you know there was not an instance of it on record? A,, ^did not. 



r^ 



51 

Q. Did you know there was ? A. I did not. 

Q. Had you ever known an instance before where Federal officers had passed over 
the State election and had been called on for the Mayoralty election ? A. I did not ; I 
never knpw an instance of a State election occurring in that condition of the country in 
which we were then. 

Gross-examined by Mr. Einott —Q. "What was the condition of things to which you 
refer ? A. The condition of civil war — the commencement of the year ; that was the 
first year of his being .in the Cnstom-house ; Mr. Opdyke and I have been on very con- 
fidential relations; I can't state whether the money was paid before or after the elec- 
tion; I have stated when it was paid ; the election was the first Tuesday in December; 
I paid over the proceeds of all the money collected, in one check to Keyser and two 
checks to Churchill; not a dollar went directly to Opdyke; I paid over the whole 
amount, less expenses, or commissions for collecting. 

Re-direct by Mr. Pierrepont—Q. Before the commissions were taken off, how much 
did it nmount to ? A. I cannot tell ; I was intimate with Mr. Opdyke at that time. 

Q. Had Mr. Opdyke made a good many appointments in your office ? A. No, sir, 

TESTIMONY OF GILBERT G. YOUNG. 

Gilbert G. Yoong, sworn. Examined by Mr. Pierrepont. In October, Novem- 
ber, and December, 1861, 1 was employed in the New York Custom-house ; I know Mr. 
Palmer ; he was private secretary to Mr. Barney ; that is, appointing clerk. 

Q. State what you did, and who requested you to do it, in relation to raising money 
in the Custom-house for Mayor Opdyke 's election ; state what was said by Mr. Andrews 
■or Mr. Opdj'ke, or both? A. About twelve days prior to the election, I received a no- 
tice from the private secretary, Mr. Palmer, to report; on reporting there, the question 
was put to me whether 1 was in favor of Mr. Opiyke's election ; I answered that I was, 
as he had the nomination ; the remark was made that " Mr. Weed caused your appoint- 
ment ;" I said I remembered that ; said he, " I want you to have leave of absence for 
about twelve days from duty ;" I was then ordered to go up into t1ie Seventh and Sev- 
enteenth Wards for the benefit of Mr. Opdyke, having been introduced to him in Pal- 
mer's office, and there see what Mr. Weed was doing through the police department to 
defeat Mr. Opdyke, if anything ; Mr. Palmer gave my orders in the presence of Mr. Op- 
dyke ; no money was given me at that time. 

Q. Did Mr. Opdyke, or Andrews give you any money? A. Mr. Andrews did on the 
morning of election day. 

Q. What had yoQ to do about raising the money? A. Nothing to do about raising 
tfhe money, except to notify parties who had not paid to come up and settle ; I did 
datify them; some came up ; they were Custom-House officers I notified. 

TESTIMONY OF HENRY D. STOVER. 

Henry D. Stovek, sworn. Examined by Mr. Pierrepont. I have been in the ma- 
chine business for eighteen years, and have been a manufacturer and dealer in all kinds 
of machinery, metals, &c. ; I know Mr. Marston. 

Q. Who furnished the machinery to Mr. Marston for this armory that was burned ? 
A. I furnished about sixteen engine lathes, I think, and quite a number of milling ma- 
chines, and the shafting, I think, for the entire building ; I was in the building a 
good many times; I understood all about its arrangement; I knew about its being 
destroyed. 

Q. Have you examined into the machinery, and into the account furnished by Mr. 
Farlee to the city? A. I have ; the items I furnished are nearly all here : there are 
some items in this account that I made a partial bargain to furnish, and did not do 
it; I furnished the following : 2 milling machines at $275 each, $550— charged here 
$59S ; 1 milling machine at $275— charged here $279 ; 1 milling machine at $275— charged 
here $303 ; I milling machine at $275 — charged here $287 ; 1 milling machine at $275 — 
ehai'ged here $279 ; 1 milling machine at $275 — charged here $299 ; 1 engine lathe at 
$210— charged here $255; 2 engine lathes at $190 each, $380— charged here $450 ; 7 
engine lathes at $165 each— charged here $175 each ; 2 engine lathes at $185 each, $370 
—charged here $430 ; 1 large planer jaws at $300— charged here $375 ; the next item is 
all the main shafting in first, second, and third floors and basement stories, except roll- 
ing-mill, including pulleys and hangers, sold at $646.20, and charged here at $1,681.16; 
I sold 10 milling machines, all at $275 each. 

Q. How as to this item of stocking machinery, patterns, &c., $9,669 ? A. Mr. Marston 
and I talked a good deal about this stocking machinery, as I was about building some 
for dther places — for long stocks ; these were to be carbine stocks, not half the length 
of the Springfield gun, and only required half the machinery; I agreed to build the full 
etock for $3,000, for which the charge here is $9,669 ; I did not furnish it ; $3,000 was its 
fair value, and I would have furnished it for that; bat he thought he could get it done 



s < 



52 

for less ; I do not think that what I named is all I furnished, but it is all I can point out 
without goingto my book. 

. Q. Have you the list of articles you furnished Marstonf A. 1 have ; I supplied 1 
engine lathe, 5 feet bed, at $205 . 1 engine lathe, 7 feet bed, at $210 ; 1 milling machine, 
at $275 ; 2,520 lbs. two-inch shafting, hangings and pulleys, at 10 cts. per lb. ; 1 engine 
lathe, 6 ft. bed, at $252 ; 1 upright drill at $125. • 

Q. Is this shafting for which $646 is charged, the same which you supplied? A. Yes, 
sir ; it would be impossible for me or any other man, to explain this printed inventory, 
as it is different from any I have ever seen in the machine line ; here is an engine lathe^ 
put down at 4 feet bed ; it should be 4 feet 6 inches ; I furnished [witness . went on to> 
sjtate a list of articles furnished by him, and the prices.] 

. Q. At the time you sold these articles to Mr. Marston, at the prices named, was from 
October, 1861 to March, 1S62. If tliis machinery continued in use down to the 13th of 
July, 1863, when the fire occurred, what would you say as to its being wo^rth more or 
less than what you sold it for ? A. Why, less, certainly. ^ 

Q. How much less than when you sold it? A. You could not sell it for more than 
two-thirds; that is the general rule for machinery that has been used, two-thirds to 
three-fourths. 

Q. Did you ever hear the theory that machinery is more valuable when used a shorfe 
time? A. I never heard that; I would not buy it back /or more than two-thirds of 
what was paid for it. 

Q. To what does this rule of diminution in value apply? A. It applies for all in this 
inventory, lor it was all used, I believe. 

Q. Tell us the truth about machinery having risen in value np to the time of the fire? 
A. I made no difference in price ; I sold the same articles at the same price ; I never 
charged more than $275 for milling machines, and I think mine were the best in the fac- 
tory; on 13th July, 1863, we had not raised our prices; we kept from 500 to 700 mem 
employed ; our tool establishment is at Worcester, Mass.; our heavy machine work is 
done at foot of Twenty third street— the Stover Machine Co. 

Q. You have looked through the bill of items to examine the prices ; tell the Jury 
what you find to be the truth about the prices charged in this inventory, compared witb 
what was the true price at the time ? A. I think I will compare them with oar catalogue of 
prices; I find three four-spindled drill presses charged at $225, worth $150; one three- 
spindled drill press charged at $155, worth $130 ; one one-spindled drill press chargecl 
at $175, worth $150; one engine lathe charged $325, worth $216 ; potting up and adjust- 
ing counter sliafting for sixty-five machines, charged at $1,495 ; $8 a piece would be a 
large price, more than it ever o.ost me to put them up ; $4 50 would be enough ; wrought 
anvils at 13c. per lb., 1,263 lbs., worth 10c. per lb. ; 484 lbs. cast anvils at 10c. per lb-, 
worth 7c. per lb. ; one milling machine, charged at $345, worth $275 ; two milling ma- 
chines, each $315, worth $275 ; one small milling machine, charged $175, worth $150. 

Q. Twenty-nine tool hands, from December, 1862, to July 13. 1363 -average pay 
$19 25 per week, or $558 25 for thirty- two weeks— $17,864 ; what do you say as to that 
charge? A. Onem nis enough to make tools for 300 men after the shop is running. ; thai 
would be two men for 600, instead of 29 ; and two men for thirty-two weeks would be 
$1,052, instead of $17,864. 

i.Q. Had you been through this manufactory ? A- 1 have some dozen or fifteen times ; 
Haines Brothers had the place and Marston succeeded tnem, and while the maici 
shafting was being put up I was therfe almost every morning ; I went frequently to 
collect money, and Marston good naturedly would take me through ; that would draw my 
attention from the account I wanted to collect ; the last time was about May, 186S; 1 bad 
a general idea of what was in the building ; I bought a similar concern in Worcester for 
$33,000, with more machinery in it and all the stock on hand in 1861. 

Q. What is your estimate of the value of this machinery, tools, fixtures, &C;, at th& 
time of the fire — everything except the guns? A. I should not have wanted to pay 
$33,000 myself, for it ; that would be the full v^lue I should think ; it would be neces- 
sary to make as miich outlay to build 1,000 as 100,000— that is the different kinds ol 
machinery, not the number ; on a contract of 6,000 or 10,000 guns there would be a 
very great loss ; hardly a man would want a contract short of 25,000 to 40,000 to start 
with ; it would cost probably as much for the first 1,000 as for the next 3,000 or4,000, 
and after 10,000 or 20,000 it would not cost but very little more; the expense isia 
starting with the tools and mnchiaery. 

Cross-examiiied — I live in West Twenty-second street ; I manufacture and deal in all 
kinds of machinery and metals, and railroad supplies I never made small guns, only 6 
and 9-inch cannon for the Navy-yard ; I made musket stocks for several con«?ernsin th& 
outset of the war, and patterns' to forge by, also machinery for making stocks and dif- 
ferent parts of the gun ; I never spoke to the defendant till three or four days ago ; h© 
never did anything for me.. 

Q. Were you. in considerable trouble aome time ago ? A. That is my baainess. 



Yf 



53 



Q. Were you not sent to Fort Lafayette ? A. Yes, sir. 

Q On a charge of mixing lead With tin ? A. No sir. I was sent there on suspicion 
last February ; I remained till the 4th of July ; I was charged by a Clerk in the Boston 
Navy-yard with attempting to bribe him ; I was arrested in Washington ; I had a trial 
in Philadelphia by court-martial ; the clerk was the only witness against me, and I was 
acquitted ; it was nothing about mixing up lead with tin — you have got another man 
mixed up with me ; I do not know who ; the clerk was p^id $500 for making the charge, 
as has since been proved ; since I have been out I have been at my store in Liberty 
street, a machinery depot ; I do not know how T came to be a witness ; I am frequently 
in the room of S. S. Roland, a lawyer, and he was telling me about this case ; I would 
like to tell what he said ; I was subpoenaed regularly. 

Q. Are all milling machines of the same size ? A. They are generally two sizes, they 
might vary a half an inch ; all do not ask the same price ; the highest 1 ever asked was 
$275 ; I do not remember the highest I ever heard ; others generally charged less than 
I ; I do not know whether any charged much higher ; I do not pretend to tell what the 
cost of their machinery was ; I could not tell whether the machines charged $598 or 
$550 were furnished by me ; I sold ten at $275 each ; I supposed I furnished all the main 
shafting, for $646— charged $1,680— all there was in the building was not worth $646 in 
my judgment ; I say only two tool hands would be required for that number of work- 
men whatever material is required; tools are the same in a gun factory or a machine 
shop, and require no more labor and attention. 

Q. Was there not a general increase in value from December 1861 to July 1863 ? A. 
there was some slight increase of stock , there is a very large increase since commen- 
cing about July ; the slight rise before did not affect shops that had a year's stock on 
hand ; everybody stopped buying for about a year ; I mean to say that this machinery 
which was charged $97,000 was not worth more than $33,000 for any purpose ; I thought 
some of the carbines were very poor ; I don't think a man would dare to shoot them ; 
Iwould not give ^two cents for some ofthem'that were burned, from what I have heard ; 
the machinery was worth more for making carbines, butuot worth more than $33,900 
for that ; one company sold out all their tools for $450 ; they could be worked over in- 
to other tools; they are not much account when you sell out; I had a contract to 
furnish the machinery for making the stock of the Norwich Arms Company for $7,000 
which I partly completed ; I made two sets for myself, and they cost inside of $7,000. 

JiJedireci— What I said about the guns being good for nothing, was from hearsay ; I un- 
derstood the barrels were very imperfect ; the first lot of experimental guns were com- 
paratively worthless ; to those my remarks applied more especially, and not to all that 
were unfinished ; the first person who called upon me to testify in reference to this suit, 
was Smith, from Marshal Murray's offtce ; he suspended me ; I have conversed since the 
trial came on with the counsel only and my chief clerk ; I have furnished the Govern- 
ment with a large amount of machinery and continue to do so. 

Q. Now tell all about the Fort Lafayette matter. Witness here narrated a long story 
commencing with jealousy on the part of Smith Brothers, of Boston, in the matter of 
furnishing materials to the navy-yard there ; hearing of their threats to run the witness 
off, he suspected one Jacobs, a clerk in the Navy-yard, was in complicity with them ; 
Jacobs suggested to the witness in furnishing materials to give it under weight, and 
upon being questioned stated that Smith Brotuers had done the same ; so witness ap- 
parently acquiesced, at the same time informing the ofiicers of the fact ; accordingly the 
first 40,000 pounds f copper were delivered by Jacobs at 40,390 pounds, but Jacobs 
euspeeting the trap was not caught with the second delivery; then Smith Brothers, as 
witness learned from good authority, paid Jacobs $500 to swear that witness had at^ 
tempted to bribe him ; upon this the witness was arrested and sent to Fort Lafayettei, 
where he had a good time— never hid better in his life; there were foreign ministers, 
Major-Generals, many notorious characters, and a good many lawyers there [laughter]; 
but when the Government began to investigate the affairs of Smith Brothers and others, 
witness thought they found that he (witness) was about the only honest contractor in 
this country ; and when he left Washington, Secretary Welles said : I am very hap^y to 
shake you by the hand again ; you must not think 1 had any personal feeling againstyou, 
bjit ^e had to commence with some one, and it might as well,be you as anybody ; I_ am 
ve*y happy to say to yon now that I believe there was no foundation for the proceedings 
taken against you ; in fact, the Judge-Advocate has written to me to that effect ; Smith 
Brothers, the witness further testified, had been convicted, and if they got less than ten 
years lie would be disappointed. 

TESTIMONY OF LUCIUS H. GIBBS. 

Lucius H. Gibbs, sworn. Examined by counsel for Defendant. I reside in Brooklyn; 
1 am the inventor of the Gibbs's patent carbine; I was engaged in the armory in question 
to see that the gun was properly got up ; I saw the factory burning; I have tinkered 



LofC. 



^ 



54 



with pistols and gans over 20 years, not all the time ; I was familiar with the machinery 
in this factory ; I w;as in only occasionally after Superintendent Keene came in ; Keene 
showed me the bill to the city ; I did not examine it at all ; afterward I saw the notice 
of the payment of it. 

Q. Did you say that in the claim submitted to the Supervisors, on which there was 
$196,000 paid, there was a large swindle? (Objected to, as no justificatien of the 
libel.) i'^ 

Mr. Pierrepont — The words of the libel are : " Gibbs, the carbine patentee, says that 
in the claim submitted to the Supervisors, on which $190,000 was paid, there is a large 
swindle. " 

The Court — I think they have a right to prove that he said so. It is not necessary 
for me to rule that it is justification now ; that is another question. I know no authority 
that will exclude it. It would be a very different thing if it was all fabricated from what 
it would taking the libel published precisely as is now with the fact proved that Gibbs 
never said so. 

Mr. Emott — Could we call Gibbs to prove he never said so? 

The Court — Undoubtedly. It is evidence in mitigation. I will not rule whether it 
shall go beyond that. I charge the Jury upon the effect of it. 

Counsel for plaintiffs excepted. 

Witness — I said so to a number of different individuals ; I told Farlee so in his 
ofiSce ; I did not use the same language. (Objected to and ruled out. It must be in the 
same language.) 

Q. State whether you gave any reason for the account being a swindle. (Objected 
to, ruled out, and withdrawn.) 

TESTIMONY OP HAMILTON HAEEIS. 

Hamilton Harris, sworn. I am a lawyer of the city of Albany ; have been practis 
ing since 1846 ; I am brother of Senator Harris ; (copy of The Albany Statesman shown' 
dated October 12, 1863, containing a letter from Opdyke to Ira Harris, dated September 
25, 1863) I saw the original letter here published ; I believe it was in the handwriting of 
the plaintiff; it was sent to my brother with a request that it should be inserted in The 
Evening Journal, which had contained some letters of the defendant, and if they refused 
to publish it, then it should be taken to The Statesman ; I did the errand for Opdyke in 
the place of my brother; I took the letter to the The Journal; Mr. Dawson not wishing" 
to publish it, I took it to the The Standard and Statesman. 

Q. Have you the letter requesting its publication ? A. It is marked private, and was 
not written to me, therefore 1 do not know that I have any authority to produce it ; (the 
letter was, howevar, produced and identified,) I have looked for the original published 
letter, but have not been able to find it ; I presume it is not in existence, being left with 
the publisher. 

Cross-examined. Q. Were the two letters now shown you written by your brother, 
(one dated Sept. 17, 1863, and the other Oct. 3, 1863, addressed by Ira Harris to the 
plaintiff)? A. They are in his hand-writing. 

Mr. Evarts— You don't offer them in evidence ? 

Mr. Field— We shall offer them. 

Mr. Evarts— I now offer to read the letter published in The Statesman, the origin^ 
having been proved to be lost. 

Mr. Field — The loss is sufficiently proved. I utter no secret when I state that in the 
opening of the counsel for the defendant, the letter now offered was read verbatim, and 
that the counsel took occasion to state in emphatic terms that it began with a lie. I 
have now two letters from Ira Harris showing that it was true. Now, we shall not object 
to the introduction of the letter the counsel have offered if we are allowed to prove that 
every word of it is true, and that it was written in consequence of a previous attack in 
the public prints by the defendant. Weed. 

Mr. Evarts — Do you object as it is ? 

Mr. Pield-t-I do not say. 

Mr. Evarts — I wait to understand whether the learned counsel objects. 

Mr. Emott — The Court understands us. ' , . 

Mr. Field— rWe object, but we will waive our objection if they consenj that we rtfij 
prove the letter to be true. 

Mr. Emott then proceeded to argue against the admissibility of the lettex from Op- 
dyke to Harris. He said it could be important only in connection with the strange 
charge in the counsel's opening that it was a trick — that its publication was procured 
for the purpose of making a malicious attack on the defendant, and that its statement 
concerning a previous -letter from Senator Harris was false. 

Mb. Eva.rtS — It is offered as a letter of Mr. Opdyke's. 

Mr. Emott — It has nothing to do with the case unless it tjears upon the issue, and it 
is only on the ground of provocation to the libel that it is relevant. Counsel then cited 
authorities against its admissibility, and among others the case of Gould agst. Thurlow 



/r^O 



55 



Weed, 12 Wendell, where it was held that the publication must be so recent that it could 
be supposed to be made under the impulse of passion. 

Mr. EvABTS urged the admission of the letter, as the letter of Mr. Opdyke, distinct 
from the part of its publication. The letter was dated, Sept. 25, 1863, the Commissioner 
on Claims was appointed in August; Mr. Parlee's claim was presented, Sept. 9, 1863, 
and not disposed of until October, 1863. It was part of the libelous charge that Mr. 
Weed said that while the claim of loss on the contract in question for making guna 
was being entertained before the Committee, Mr. Opdyke was holding the ground, pub- 
licly and privately, that he had no relation or connection with government contracts. 
This letter, under Mr. Opdyke's hand— his own statement, published voluntarily, showed 
that he held that ground; for he explicitly says, "Equally groimdless is the charge 
against me of of being engaged with Government contracts. * * IhavenoGov- 
erment contracts, nor have I any business connection with the Government, of any kind, 
direct or indirect. ■ 

Counsel also urged its admission as going to mitigate damages, and, in the third 
place, to show provocation. The attitude of the plaintiff in this letter was that of a 
newspaper pugilist, and being worsted in that encounter the law would not encourage 
his coming into court, and obtaining satisfaction there. 

Mr. Field replied to the grounds put forward by Mr. Evarts. How could the declara- 
tion of Mr. Opdyke in September, 1863, that he had no Government contract (which was 
true, for after the burning down of the Armory on 13th July, the contract ceased, and 
he had no further connection with or interest in any government contract) tend in any 
way to justify the libel ? If they iirst proved that Air. Opdyke had any contract, then 
it might be in order to offer his letter, stating he had not. Then, on the question of pro- 
vocation, this letter was called out by a prior malignant attack of the defendant on Mr. 
Opdyke and his son ; and had it come to this, that a party could not deny aspersions on 
his character, and then come into court and punish the libeller? If this case proved 
anything, it would prove whether a man who had a press could libel any citizen at his 
will, or whether there was any remedy. He believed that when a man departed from 
his great office of being the conductor of the public press to the base purposes of private 
slander he could be punished effectually. 

Judge Mason said that he was very clear in his convictions that this letter could not 
be given in evidence for the purpose of laying the foundation to show provocation. The 
letter was dated 25th of September, '63 : the alleged libel was written in June, 1864 ; to 
be admissible as showing provocation, it must appear that the article complained of 
was written under the sting of this letter ; but it was too remote ; Mr. Weed's blood 
would have had time to cool. The remaining question was whether it was admissible 
to show Mr. Opdyke's admission of any fact set up as a defense. He did not think it 
was an admission of anything which the defendant claimed. It might be evidence after 
the defendant had shown that Mr. Opdyke was interested in partnership with others in 
army contracts, to show that they were secret contracts ; but he did not think it was. 
Those transactions were generally developed by the circumstances attendant. Another 
objection was that. at the date of this letter all connection between Mr. Opdyke's son- 
in-law and the prosecution of this contract had ceased. 

Defendant's counsel excepted to the exclusion of the letter. 

On Gross-examination— Senator Harris was asked if he knew Charles McNeil ? A. 
No; I understand he was a member of the Legislature. 

Q. Do you know his reputation? (Objected to and excluded.) 

Mr Emott appealed to Mr. Evarts as a lawyer and a gentleman, if it was not due to 
public justice the proper conduct of the case, under the circumstances it having been 
charged in the opening that W. Opdyke had written this letter of the 25th September, 
without having any letter from Mr. Harris calling for a communication from him— that 
the two letters which he held in his hand from Mr. Harris to Mr. Opdyke, should be 
put in evidence. 

Mb. Evarts replied that if the plaintiff^s counsel had not objected to the introduc- 
tion of Mr. Opdyke's letter, and it had been admitted, it would then have been compe- 
tent for them to have these letters put in proof, exhibited to counsel for the defense, 
and made the subject of comment to the Court and Jury ; but the letter of Mr. Opdyka 
being e5ccluded, he could not consent to having those letters received, "■ 

The Court could not conceive that these letters were needed foir tlie purpose of 
answering— not the defendant's case upon proof, but the defendant's case upon his 
opening. The Jury knew their duty was to decide upon the evidence of witnesses on 
the staud ; and although things may have stated by counsel wnich are deemed prejudi- 
cial, they go for nothing with the Jury unless substantiated by proof. 

Counsel for the plaintiff offered to withdraw all objection to Mr. Opdyke's letter, if 
that and the two letters from Mr. Harris were put before the jury. 

Mr. FiekIiepont— Will you let us see the letter ? - ' 

Mb, Field— When you let us read it. ' ■ ' i 

Judge Mason said the letters' wbuldiiot "be 'received. 



^V\ 



56 

Mr. Pierbepont requested permission to say that in opening the case to the' Jury, lie 
stated he expected to prove (unless the witnesses stated diflferently from what they had 
down from them,) that there was no letter to which this of Mr. Opdyke was a fair reply ; 
and he had to say that such was the evidence they had. 

Mr. Field — That is improper to state in court ; I must have this whole subject stop 
here. 

Counsel for defendant read in evidence, the articles published under the date of June 
18th and June 25th, the extracts from which contain the libels in suit. 

Pending the reading, the court adjourned till to-morrOw. 

The following cotrespondence was ruled cut on the trial : : ' 

FROM IRA HARRIS TQ GEO. OPDYKE. , 
.,, ; . AI.BA^^■, September 19, 1863. 

Mt Deas Sir : I have just read in this evening's Journal the infamous attack of " T. W." upon 
lyou'.r It will probably have met your eye before this reaches you I feel indignant that such a publi- 
cation should be allowed in such a paper at such a time as this. The whole ariicleis characterized by 
disgusting arrogance ; but, in the paragraph that relates to you, ihe writer seenip to have indu ged 
himse.f in giving vent to his personal malignity. It grieves me to think that the present editor and 
proprietor of the paper, who is a most excellent and well-meaning man, should be so far under the 
control of T. "W. as to be obliged to allow his paper to be made the vehicle for conveying to the world 
such a venomous attack upon a political friend, who, to say the least,' has as many friends to be 
offended by it as T. W. has friends to be gratified. 

My first impulse was to write an answer over my own signature and ask Mr. Dawson to publish it 
to-morrow. But as I could only meet the imputations by a qualified denial so far as my personal 
knowledge is concerned, I thought it better to leave you, who, as I well know, are quite equal to any 
such duty, to answer T. W. in your own way. I shall certainly insist upon having the columns of 
yfte Jbarwal open for you if you think fit to use them. 

Yours with esteem, 

The Hon. George Opdtke. IRA HARRIS. 

IjMtBR FROM GEOEGE OPDYKB TO HON. IRA HAltBIS, PaBLISHED IN THE AlBANY STANDARD ASD STATESMAS, 
■'" 0CT0BEB12, 1863. ' 

New York, Sept. 25, 1863. 

My Dear Sir : Accept my thaakp for your kind lettpr, prompted by Mi\ Weed's attack in the 
Evening Journal, on myself and one pf my sons. 

I had read the article before receiving your letter, but did not regard it as worthy of any notice 
from me. I supposed that every one whose good opinion I desire knows the charges against me to be 
as false as they are puerile and malicious ; for I had long since convicted their author, by the 
Bworn testimony of unimpeachable witnesses, of the most reckless disregard of truth in a similar 
instance. » 

• A few words will show these to be of the same character. 

The first charge is, that my son was drafted and sent a substitute. This is not, in its worst aspect, 
an act worthy of censure. But when I inform you that his notice of draft found him ccftilined to his 
bed, by severe jllness, from which he has not yet recovered ; that he could not, therefore, have re- 
sponded in person , however anxious to do so; but that notwithstanding thisexemption he at once gave 
directions to have a good substitute procured for him — you will readily perceive that he has done 
all that it was in his power to do, and more than the law required of him. -And yet Mr. Weed calls 
fins skuOcing . No other man, I am sure. Will be able to see it in that light. 

But I suppose that this redoubtable Lobby Chief, in h is successful warfare against public virtue 
and ofiicial purity , has acquired more exalted conceptions of the chivalrous than ordinary men possess. 

He next charges my son with holding offices. , 

There would be nothing improper in this if it weretrue, unless he had bought them of some office- 
broker like Mr. Weed. 

But it so happens that he has never asked for or received an office of any kind, unless the barren 
commission of notary public may be regardedas such. 

Equally groundless is the charge against me of being " gorged with government contracts." This, 
if true, wouldnot be at all censurable, provided I obtained them fairly and executed them with fidel- 
ity ; and I defy Mr. Weed, or any one else, to point to a single business transaction of mine in Viola- 
tion of those rules, or of any others prescribed by mercantile honor and fair dealing. 

But you will be astonished at the mendacity of the charge when I inform you that these contracts, 
like the offices of my son, exist only in Mr. Weed's imagination. I have no Government contracts, 
nor have I any business connection with the Government of any kind, direct or indirect. 

These are the only charges. You will perceive thai they would, be^al^ogether harmless,, if true. 
..Being false and maliciods, as well as puerile, they can of course injiire uo oce but their autnox.' 

1 will thank you (o ask the conductors of The Evening Journal, the paper which these slanders 
llrBt appeared, to publish this' letter. Believe me, sincerely yours. . 

»: GEORGE OPDYKE. 

FROM IKA HARRIS TO GEORGE OPDYKE. 

Albant, October 3, 1864. 

My Dbar Sir : I reached home last evening. On coming to my office this morning I fdund yotir 
letter of the 25th ult. I read it with care ; it is terribly and juetly severe. For mygalf 1 have no ob- 
jection to its publication. The provocation is ample : the cbaatisement is amply deserved. I can sea 
that it would require gome self-restraint to withhold it. But, as a friend, you will allow me to sug- 



/^/ 



51 



geBtfor your consideration -whetlier in making the publication it would not he wise to omit all after 
Jhe paragraph ending with the words " their author." Upon reflection, I have come to the conclu- 
sion that I would do so. Up to this point the letter is d«/e)Mtwe. It is a triumphant viudication. I 
would not have the attention of the public diverted from this defense by counter-charges against Mr. 
Weed. And besides, I think, it would be more dignified for you. While everything you say, and pro- 
bably much more, is deserved, the public are already pretty well aware of it, and I would retain this 
" shot in the locker'' for future use in case it should become necessary. 

Personally, I have no choice on the subject, and I have made, these suggestions with hesitation. 
They merely indicate the course which I should feel inclined to take if I had such a case on my hands. 
Entertaining these views I have not ihown the letter to the Editor of The Evening Journal. I will 
still do so If you desire it, but I think you may assume that he decUnes to pi^blish it and would have 
the letter inserted in The Tribune, I will see that it is copied into The Statesman. 

The part of the letter which I propose to have you publish is exactly right. The allusion to 
former charges is very proper. I see nothing, not even a word, in all that which I would change 

And now, my dear sir,! trust you will excuse me for the freedom with which I have written. I 
have done soin the spirit of thesincerest friendship, and with the feeling that an outrage had been 
committed upon you, and that its author deserved to be punished. Your own better judgment will 
decide what value there may be in the suggestions I have made. Yonrs with esteem. 

IKA HARRIS. 

The Hon. George Opdtke. 



SEVENTH DAY. 

WEDNESDAY, DECEMBEE 21 ST, 1864. 

At the opening of the court, Mr. Pierrepont said: If your Honor please, you will 
remember that in the progress of the case yesterday, certain letters were ruled out of 
evidence. In the Tribune of tliis morning, these letters are published in the proceed- 
ings of the court of yesterday. I call your Honor's attention to it simply to say that 
you will remember that yesterday, when the subject of whether we would consent to 
have any such letters appear, was under discussion, and somewhat warmly, yonr Honor 
stopped us all, and put an end to the matter ; and we had, of course, no opportunity 
for any consultation whatever about it between ourselves until last evening. We are 
relieved this morning from what we had altogether, on consultation, determined to do, 
by the letters appearing in the newspaper. We had stated, in our opening, that this 
letter of Mr, Opdyke's, wliich is thus published, was not a fair reply, or real reply to 
any letter which had been received. That information we received from such a source, 
and with such particularity, that it seemed impossible that we could be mistaken upon 
that subject. The letter of Mr. Harris, which is published this morning in the Tribune, 
we wish to state, is a letter to which that letter of the 25th of September is a fair re- 
ply, 'the letter is as extraordinary as the information that we had received on the sub- 
jects- that there was no letter to which this was a fair reply. But we wish here to-day 
to state that we do consider this a letter to which the other is a fair reply. 

Mr. Field— If the court please, while the matter is under consideration, I beg to 
state that the recollection of the learned counsel in respect to what he said is not ac- 
curate. What he did say was this : •' Would you believe it that this statement concern- 
ing this ' kind letter ' which had been written to Mr. Opdyke, was, every word of it, a 
lie. Senator Harris never wrote him a word in reference to the subject ; it was a mere 
concoction, and the very envelope that carried this letter, asking it to be published in 
the newspapers, contained a private note, asking to be allowed to use this trick and 
this fraud." Now they had this private letter oif Mr. Opdyke's, which they call a trick; 
and it has no reference to a trick. 

'.Mk. Pierrepont — I have no farther remarks to make. 

Defendant's counsel was about to proceed with reading the articles, containing the 
alleged libel. 

Plaintiff's counsel objected to reading the whole of the articles, which were very 
long, and the great proportion entirely irrelevant to the subject of the libel. 
' Mr. PiKRRBPONT— If anything is settled, it is that the articles, from which the libels 
are selected, may be read. 

Court — I understand the rule to be, that the counsel may read all in the libel that 
has any reference to, or can in any manner be said to relate to, the subject the libel is 
founded upon. It is difficult to discriminate. Perhaps it is as well to let all go in if de- 
Bired. 

Mr. EvARTS-^We- cannot divide iti . 

Plaintiff's counsel excepted to the admission of the articles at length. 

Mr. Pierrepont then concluded the reading of the articles. 

;>•■ ' TESTIMONY OF JOHN C. FREMONT. 

, JosM C. Fbemont waaiihen called &n the part of the defense, though oat of order, as 



58 

the counsel stated, in order to accommodate the witness in view of his engagements. 
He testified as follows : My residence during, the last eight years has been iu California 
and in this city ; I was the owner of mining property in California known as the Mariposa 
estate, about 44,000 acres ; I had been owner and part owner about seventeen years; 
in the Summer of 1862 it became the pubject of a stock incorporation ; it had been 
worked since the Winter of 1845-9 ; the product was principally gold ; there were other 
minerals in lesser quantity ; it was worked by surface washing and regular mining in the 
vein: it had produced from' surface washing a number of millions of gold; I cannot 
state the amount, as the accounts were loose ; from regular mining I suppose it had 
produced about $3,000,000; it supported several thousand people; several companies 
were established on the property; that was the state of it at the time it became the sub- 
ject of incorporation ; I then owned five-eighths, and held the legal title to six-eighths ; 
the remaining two-eighths were owned by Frederick K. Billings and A. A. Selover, each 
one-eighth ; the beneficial interest m the other one-eighth was in Trenor W. Parke ; all 
these were Californians ; since the incorporation they have all become residents here, or 
in the Eastern States ; it was valued at $10,000,000 ; that valuation was fixed upon it in 
all the different negotiations founded upon what it had produced regularly ; it was first 
a subject of negotiation in San Francisco at that valuation, then in England, France and 
Germany; the entire property went into the corporation, including the shares of the 
other owners; everything that belonged to the estate, movable property and all; no 
other property went in that I am aware of; the property was subject to incumbrances, 
or liens, at the time the negotiations commenced, estimated to be something over 
$1,250,000 ; on settlement it was found that there was about $1,000,000 more required to 
pay the debt; the monthly interest account was about $13,000, the larger part being at 
two per cent, a month, and a large part of that compounding monthly ; we undoubtedly 
took into account the debts, in estimating its value aj $10,000,000, which was considered 
its value as it stood ; the negotiations to form the company here commenced about the 
end of August, 1862 ; I was then very slightly acquainted with Opdyke'; I knew him in 
1856, in connection with the political campaign, as one of the members of the Republi- 
can party ; I did not know Morris Ketchum prior to the time of the negotiations, iu con- 
nection with politics — only generally, as a man of business here ; I did not know Hoey 
prior, except by reputation ; I had known Selover and Billings in California well, and I 
had personal acquaintance with Simon Stevens prior ; he resided in this city, and was 
engaged in business here. 

Q. State how these negotiations commenced and how you were brought in connec- 
tion with Opdyke, Field, Ketchum, and Hoey concerning them? A. A few words of 
explanation will be necessary ; as I have already stated, various other negotiations had 
been attempted ; in the spring of 1861 1 went to Europe with Frederick Billings with a 
view of procuring a loan to pay the debts of the estate and form it into a company ; soon 
after our arrival there it was found the undertaking would be very difficult or impractica- 
ble, on account of the near prospect of a civil war; some attempts were made, and some 
not very positive offers were received; they were not accepted; when the war broke out 
I returned to take part in the public service, leaving Mr. BilUngs to continue his attempts 
at negotiation ; in the summer of 1862 I returned from Virginia to this city, and found 
the condition of my private affairs such, especially as regarded the Mariposa property, 
that it. required my immediate attention ; all the attempted negotiations had failed ; 
Billings had tried in London and Paris ; had returned to try in Philadelphia and New 
York, and had then gone to Germany, and had failed there ; the debts of the estate were 
very pressing, and it had been for some time in the hands of a mortgagee ; it had been 
turned over into the possession of Mr. Parke, who had advanced a large sum upon it, to 
whom it had owed a large sum, and some other debts were worked out of the property ; 
in that condition, in some conversation with Major Stevens, I proposed to give to him 
and others whom he might associate with him in the undertaldng, one-fourth of the prop- 
erty, for the consideration of procuring the amount necessary to pay the debts, and form 
it into such a company as was desired ; about the 1st of September, Stevens proposed 
the arrangement to Morris Ketchum, as I understood, and, after various conversations, 
Ketchum deputed Mr. Allen, who was about to go to San Francisco, to examine the 
estate and report Upon its condition ; Allen did so ; he examined it in October, and 
reported in December, and the subject was then, or previously, communicated by 
Ketchum to Opdyke and Hoey ; he associated them with him, and the negotiation went 
on until about the first of March, 1863, when Hoey was sent or went, on the part of him- 
self and associates, to California, with a view to re-examine the property, to ascertain if 
it was such as had been represented by the proprietors, as it had been confirmed to be 
by the report of Allen ; in the meantime other negotiations had been concurrently car- 
ried on in California ; there had beeii some offers made; Guille, whose principal house 
was in Paris, repeated an offer which had been made to me in 1861, viz : to furnish or 
lend a million of dollars to pay off the debts, in consideration of which he was to receive 
as a bonus one half of the property, I to have the entire control or possession of it; 
Billings had made a proposition to two gentlemen, one or both of whom had been or 



/J'L 



59 



were bankers of the estate in San Francisco, John Parrott and Mr. Loonan; his propo- 
sition on the part of the proprietors was, to divide the estate into tenths, to give me 
five-tentiis, to Parrott and Loonan two-tenths, to each of the other proprietors one- 
tenth, and to outsiders two-tenths ; these negotiations were pending ; these gentlemen 
were to advance money to pay my portion of the debt, to be estimated only at a million ; 
and they were to have an interest on the whole debt of one per cent, a month, and to 
retain, in the proportion often to one, my stock until it was paid ; the ordinary rate in 
California at that time was from 2 to 1\ per cent, a month ; the proposition was rejected 
by these gentlemen, they requiring to divide the property into eighths, and to receive 
two-eighths instead of two-tenths; it so stood in the early part of the negotiations ; they 
subsequently came to believe that it would fail here, and that they could obtain the 
property on much better terms ; they were creditors to a considerable amount ; they 
finally came to demand that the estate should be divided into thirtieths, of which they 
were to receive 14 ; I 7, and each of the proprietors 3 ; Billings who acted for me also in 
California, wrote me about that time, repeatedly, that I must succeed in the negotiation 
here, or I would lose my estate there ; that I had only the alternative of success here ; 
this was about March, 1863 ; I then concluded to go on with the negotiation here ; I con- 
sidered that three-eighths of the estate, with its debts paid, and the property put into a 
revenue-paying condition, was better than none at all ; I, therefore, did everything in my 
power to carry forward the negotiation here; about the end of June the settlements were 
all agreed upon, the papers were executed, and the company formed ; bonds were to be 
issued to the amount of $1,500,000, by them, and debts were to be discharged ; that was 
specified in the contracts drawn ; in the progress of the negotiation my intention and 
understanding were that the debts were all to be paid — all that had accrued in under- 
taking to develop the estate and defend it against the attacks of the General Govern- 
ment; in the course of the negotiations that came to be changed in some way, so that 
what was strictly regarded as liens, such as held the estate, were to be paid; it was 
made a subject of the contracts. 

Q. While you were in Europe was the unsettled state of the title an embarrassment 
in the matter, and when was it removed? A. It was finally removed by the issue of a 
patent in 1856 from the General Government; that had been a great impediment to ne- 
gotiations iu Europe and in this country, and to the proper working of the estate, and 
had been in a great measure the cause of the depressed conditions, of the estate— the 
embarrassment growing out of the Tttack of the General Government upon that 
title and many others in California; before these negotiations were ended here all that 
had passed away, and the title was assured, and it was purely a question of raising the 
debts from the property; one hundred thousand shares of stock were issued, at tlie par 
value of $100 ; Selover received 12,500 sliares ; Billings the same, and Parker the same ; 
they have held some that they received then clear of all contribution ; the balance, 
62,500 shares, represented my five-eighths; under a written agreement which accom- 
panied the contract, 25,000 shares became the property of the three gentlemen who en- 
gaged to form the company and obtain the money necessary to pay the debts, namely, 
Ketchum, Opdyke and Hoey ; that left me 37,500 shares ; of that, under the same written 
agreement, two thousand shares were paid to Mr. Field ; no other distribution was made 
of that remaining amount, so far as effected this company, except two thousand shares 
to Stevens ; that left 33,500 shares, of which 25,000 were placed in the hands of Ketch- 
um, leaving me 8,500. 

Q. What became of that 25,000 to Ketchum? A. It was made the subject of a writ- 
ten agreement between Ketchum and myself, of which I, probably, have a copy among 
my papers ; (Mr. Field here offered a copy of the paper, which was identified, being 
dated May 19, 1863, and executed about that time ;) this matter came up as one of the 
subjects of discussion at the close of the negotiation ; it was required, I think, by 
Ketchum. 

Q. What did you understand was the disposition required of this additional 25,000 
of stock? [Objected to as a transaction between the witness and Ketchum alone, and 
in no way connected with the plaintiff. Objection overruled : exception taken. A. 
Ketchum stated that the gentlemen who undertook to form this company here, and to 
be in some^measure responsible for it, desired to be able to control it here rather than 
to have it controlled in California, as they were? fearful that ife might, if I should make 
any change in my ownership and transfer a large part of my shares ; and that in view of 
the accidents to which I was professionally exposed, which might occur sooner or later, 
he wished to be protected against such contingencies ; for that purpose he desired to 
retain control over that amount of stock in order to enable him to vote upon it; I re- 
garded it as a concession, and after some debate, yielded it ; I regarded Ketchum's in- 
terest as in connection with others. ' 

Q. What did you understand to be the form or degree of control over these shares 
that was asked for? [Objected to. The Court— You may answer.] Was it simply the 
right to vote ? A. That was the reason given by Ketchum. 



60 

The Court— Q. Still the stock was actually transferred ? A. It was transferred to 
him to hold in trust. 

Mr. EvARTS read the agreement between Fremont and Ketchum, transferring the 
25,000 shares for a certain time, or until the bonds, not exceeding $1,400,000, wdre paid, 
when they were to be re-transferred : in the meantime, Ketchum was to vote always 
■for Fremont, so long as they remained in his hands, and should use all his powers to 
make the dividends fifty per cent. 

Q. What caused the issue of $1,400,000 in bonds ? A. It was ascertained by Hoey, in 
Calit'ornia, that that would probably pay the debts ; the nearest amount to which he 
could reach ; the remainder was proposed to be used in further developing the prop- 
erty ; the bonds were to be a first lien. 

At what stage of the transaction did the payment of the 2,000 shares each to Stevens 
and Field come up ? A. The amount originally offered by me for this arrangement was 
quarter of the property ; in the course of the negotiation, it came to be held by the 
three gentlemen, Ketchum, Opdyke and Hoey, that thatquarter belonged principally to 
them, and that Stevens was not entitled to a very large share ; there was some disagree- 
ment in regard to it, and as there had been a change in the form of the negotiation 
which gave to me a rather larger amount of shares than I would originally have been 
entitled to, I gave to Stevens myself voluntarily a certain amount, which amount com-, 
prehended both those amounts of 2,000 shares to Field and 2,000 to Stevens. 

Q. How and when did you learn that 2,000 shares were to be paid, or desired to be 
paid to Field? A. Prom Field himself, shortly before the conclusion of the transaction, 
I think. 

Q. Were communications passing between you here and the California parties at the 
close of the transaction? A. Constantly, very frequently, by letter and by telegraph ; 
in the month of November I learned more distinctly that 1 must close it here ; from the 
first to the close of the month we communicated daily by telegraph. 

Q. On what ground was there an agreement that you were to part with any shares 
to Mr. Field ? A. There had been an agreement to part with a cei'tain number to him, 
embracing those that Field was to receive ; I had no arrangement with Field in respect 
to the shares; his understanding was with Stevens. 

Q. Did you know it was 2,000 shares till Field informed you? A. I did not. 

Q. Up to that time the agreement was whatever Field was to receive you were to 
pay ? A. I knew that it was to come from me, but not in that way ; I did not know the 
amount ; it was to be in consideration of his services as counsel and legal adviser in this 
negotiation ; the proposal was originally made to Stevens to undertake to find men of 
sufficient financial strength to accomplish the negotiation, and to him the oifer of one- 
fourth of the estate was made, with such associates as he could procure. 

Q. Then these payments to Field was, in fact, outside and in addition to the one- 
fourth ? A. They were, as it turned out. 

Q. What finally became of the 25,000 shares that went to Ketchum under this paper ? 
(Objected to as in no way connected with the plaintiff.) ' 

The witness further stated that he presumed Ketchum claimed the control of the com- 
pany in the name of his associates, and that Opdyke was present at the time the propo- 
sition was made ; the three gentlemen acted together. 

The Court allowed the evidence to be given upon thfe statement of Mr. Evarts that 
he intended to connect the plaintiff with tbe transaction. 

Witness — The agreement said it should be transferred, but it was issued originally to 
Ketchum at the time the other issues were made ; the distribution was the subject of a 
written agreement; the whole of it was transferred by Ketchum to me ; it was origi- 
nally the subject of a suit on my part, but the suit was discontinued. 

By the Court— Do you know whether Opdyke had any connection Avith this parti- 
cular matter? A. 1 do not know distinctly ; he may have had, but to what extent I do 
not know. 

By THE Court— Do you know that he had not? A. No, sir, not certainly. 

Mr. Evarts— He knows the result. 

Witness^ — Yes, sir ; it was transferred to me, or made subject to my control. 

Q. What was the result ; how did it come back toj^ou? ^(Objected to.) ', ' 

The 'Court allowed th^ evidence, upon the statement of defendant's counsel that he 
would connect it with the plaintiff. (Exception taken.) 

Witness- The transfer to me was upon an arrangement that I should sell 5,000 of 
these shares for 25 cents to Mr. Hoey, I believe, for himself or for Ketchum ; I have un- 
derstood from one of the parties that the object was to have as larg€ a control still, in 
the same sense, of the stock. 

Q. What was the market price of the stock at the time you were to seH it at 25 ? 
(Same objection.) A. It was considerably above 25 — some 10 or 15 per cent, I believe ; 
it was done, I think, in October, 1863 ; the stock was then sold at the public Board of 
Brokers. . 



V, 



61 



• Q. In whose checks were you paid? A, In two separate checks signed by James 
Hoey ; Opdyke was not in any way connected with the checks ; the two checks paid for 
the whole ; I believe a million and a half of bonds have been issued ; what amount ap- 
plied to the payment of the debts I can only state from the hearsay ; it was a matter 
carried through while I was one of the directors ; I believe the whole amount was ap- 
plied to the payment of the debts ; that question came up as between the company and 
myself; I think there were found to be something over $2,000,000 of liens ; legally, they 
might have been less, but upon arrangement with the creditors they amounted to 
that. 

Q. Do you remember anything about a parcel of $280,000 of those bonds being a sub- 
ject of controversy between you and those associates? A. About the time this suit be- 
gan, I had understood that there was that amount unappropriated, out of which I re- 
quired that the incumbrances which were not liens, should be paid, but my knowledge 
on that point is indefinite ; I suppose I learned such to be the case ; I commenced a suit 
to enforce the payment of those incumbrances by the company, and it was finally ad- 
justed between us; what became of the bonds, I do not know ; it is well to say, in this 
connection, that those debts, not liens, were finally paid by myself, and not by the com- 
pany ; I paid something over a quarter of a million — not that special amount of $280,000 
— which I contended those bonds ought to be applied to ; I know John J. Howard, who 
was a resident of California ; I formed his aquaintance in 1856 here as a, member of the 
Eepublican party ; our relations were quite intimate and confidential; I learned that he 
left for Europe some weeks ago. 

Cross-examined by Mr. Field.— ^The best offer I got in Europe or anywhere else was 
the one which was repeated by a branch of the house in San Francisco, as I have stated, 
viz : one-half of the estate as a bonus, a loan of $1,000,000 to be returned with interest, 
and thus one-half of the profits to go to the old proprietors ; that was subsequent to the 
perfection of the title ; I saw the Rothschilds ; Billings may have received better offers, 
Imt that was the best I heard from him ; the offer to Billings in Philadelphia was to con- 
vert $750,000 of the indebtedness into 20-year 10 per cent, bonds, for which the promot- 
ers of the enterprise were to receive from one-fifth to one-fourth of the estate ; the dis- 
position made with Ketchum was the best I was able to make subsequent to the confir- 
mation of the title ; when I returned from Virginia in 1862, beside the incumbrances of 
$1,250,000, Brumager had a claim of one-eighth of the estate, and Parke's claim was one 
which I discussed before recognizing it; it was one-sixteenth; the claim of Brumager 
had no foundation, but he made it ; it was for $225,000 at two per cent, a month com- 
pounded. Parke's was for $400,000, embracing the other one ; he claimed also on be-, 
half of Loonan part of a claim amounting to several thousand dollars, to be paid in gold; 
there was also due workmen a large amount; I had ceased to receive remittances from 
the estate ; the product should have been greater than the interest account, but I found 
the debt increasing ; when I returned to California, I proposed to Stevens to sell the es- 
tate ; after various conversations the result was this offer from me ; it was through Ste- 
v^ens that Ketchum was brought in, and executed the deed of one-quarter the estate to 
Stevens and Ketchum in December, 1863 ; the agreement by which I gave him 7,000 
shai'es was sometime subsequently, if my memory serves me ; (deed executed Dec. 12, 
1863, produced to fix the date ;) it was about that time that the articles of association 
were drawn and sent to Albany; there were discussions extending over nine or ten 
months ; {paper of 24th of Janua.ry referred to to fix date of agreement to transfer the 
5,000 shares, which witness thought was later;) at that date I had made no arrange- 
ment with you about your fees ; I authorized your retainer at the commencement of the 
negotiations; the arrangement with you I left to Stevens ; I never knew what it was till 
you informed me— until the 2d of July ; there was a conversation in your office on that 
day, which is identified by this paper, respecting the amount to be issued to Stevens, 
about which there was some discussion ; it resulted in my inquiring, of you the amount 
of your demand, or what you received. 

Q. Was not this the occurrence precisely? You preferred not, then, to issue it, to 
Stevens, for certain reasons ; I then asked you whether you had any objections to di-. 
recting the issue to me immediately of what was to come to me ? A. Yes, sir. 

Q. And you immediately replied, " None at all?" A. I remember that my answer 
• was immediate to you ; that I agreed to it and wrote a note to Ketchum. 

Q. Do you remember saying, when I told you what it was, " Yes you richly deserve 
it," and wrote the note ? A. I made some such remark. 

Q. Now, if my fees had been 5 shares pr 5,000 shares, would that ha.ve:lessened what 
you were to receive from the establishment? A. No, sir. 

Q. The whole came from Stevens did it not ? A. It came from Stevens ; that is, from 
the portion he was entitled to,' 

Q. Was not the basis of the scheme, then, the issue of 36,000 shares of stock for thft 

payment of the debt, and to get cash subscriptions? A. Yes, sir. ;.,; 

jQi iThatt TBTosld Leaj^e you one-JjaJf ^ Qt32>Q00 shares,excluding:any ciaint;&f Parke; foe 



one-eighth? A. That was the arrangement to which we came in the last negotiation. 
(Objected to as not pertinent.) 

Mr. Field— The claim is that these gentlemen, working on Fremont's political aspi- 
rations, proposed to put his estate into their hands for the purpose of making him a Pre- 
sidential candidate. 

The Couet— I don't see how it reflects on the libel. 

Mr Field— I am only showing that he finally received not 32,000, but 37,500 shares, 
and realized as a residue more than a million of dollars more than the original offer, and 
that there was no exaction at all. 

The court ruled the evidence admissible as part of the negotion. 

Question by the Court— State now what the arrangement was ? 

Witness— An arrangement of the kind you began to describe was made, as the first 
one, in which the debts were to be paid from the sale of a certain amount of stock set 
aside for the purpose ; that arrangenient was afterwards changed^and it was provided 
that the debts were to be paid by funds issued upon the mortgage of the property ; that 
^ave to the proprietors a larger amount of stock than they would have had if a part had 
been taken with which to pay the debts ; I received a larger amount of stock in conse- 
quence. 

Q. During all these negotiations, was there any pressure upon you, on the part of 
any of these gentlemen, to get you to Come into the arrangement? A. No ; there was 
a negotiation which they conducted on one side, and 1 here on the other ; my copart- 
ners in San Francisco contributed their parts. 

Q. The urgency, or pressure, if any, was it not on your part, to get it accomplished, 
rather than on theirs to get you to-do it? A. I think so ; at least I felt as strong a dis- 
position, or. stronger, to carry it out than they did ; but I do not know what their mo- 
tives were, more than that. 

Q. Was any unfair advantage taken of yon by any of these gentlemen in any of these 
negotiations? A. No, I think not. 

Q. Now, to show how great the urgency was for a consummation of this affair, I ask 
you to look at this telegram, d ted November 4, 1862. Did you receive that? A. O, 
yes, I received this from Mr. Billings : " Allen left by over route ; Doyle takes powers ; 
matters press ; relief or ruin ; you must do something. Fredk. Billings." 

[Counsel produced a large number of telegrams, which were identified by the wit- 
ness, and read some of them urging the necessity of an arrangement, and the need of 
coin to pay the Parke claim and others. " Dec. 9, 1862. Parke gives possession, if his 
accounts are passed at $1,400,000 in coin. Take possession if you consent to pass his 
account." 

Jan. 16, 1863. " Your position with Ketchum makes it inconsistent with me to longer 
hold your power of attorney ; I will substitute any one you name. . . Ketchum only 
paid currency. . . Do not be surprised if you lose the whole estate; after your gal- 
lant fight, I grieve that on the eve of victory, you should only have defeat."] 

Q. In all the negotiations you had with the gentlemen named by you in this examina- 
tion, did they not honorably and fairly carry out their various agreements with you to 
which you have referred ? A. I think they have ; you remember there were controver- 
sies which were adjusted as they came up, growing out of our different interpretations 
of the agreement. 

Q. In point of fact, the debts proved to be a great deal more than was expected. 
A. Yes, sir. 

Q. It was expected that the debts and incumbrances would be one and a half mil- 
lions, and they turned out to be over two millions, and a large number of private debts 
whichihey paid in addition? A. Yes, sir. 

Q. Who is Mr. Doyle, referred to in the telegrams? A. Mr. John T. Doyle, a law- 
yer in San Francisco ; he brought powers to act for Billings and Selover ; there were 
long negotiations with him here ; I came to Mr. Field's house in negotiations with him, 
sometimes in the night, sometimes in the evening, and sometimes in the morning ; there 
were long discussions with him. 

Q. What was the difiBculty with him in regard to arrangement? Was it not that the 
other two co-owners, Billings and Selover, insisted upon certain terms which the gen- 
tlemen here were not willing to give ? A. Some of it was ; I think the principal diffi- 
culty was with Mr. Doyle himself; he was quite an impracticable man ; I know at one 
time you asked him if he could himself write anything, to which he would agree as hia 
arrangement, and he did not succeed in doing it. , 

Q. While Mr. Doyle was in San Francisco, was there not a vast deal of negotiations 
going on in reference to the matter? A. Yes, sir. 

Q. State how long this negotiation was? A. I can only say they were long, and dif- 
ficult, and complicated, because some of the proprietors of the estate were in Califor- 
nia ; it required to be examined very particularly, to see whether the statements made 
by the proprietors were borne out by the facts ; that, coupled with the fact that the 



/ff^ 



63 



money to be paid out was large, made the negotiations long, tedious, and laborious ; I 
know Mr. Field had a great deal to do ; he was very much occupied with the negotia- 
tions -, he gave a great deal of time and attention to it, and a great deal of care necessa- 
rily, from the time I first spoke of to the time they were consummated. 

Q. Are your relations with these gentlemen still friendly? A. They are. 

Q. Are your relations with Mr. Ketchum intimate and confidential? A. They are 
he is my banker ; my relations with Mr. Field are confidential and friendly ; they are 
the relations of counsel and client ; he is still my counsel, and until recently he had 
quite a large number of suits of mine in his hands ; within a short time a settlement of 
several of them took place. 

Qi I call your attention to this passage : " More than a year ago Mr. Opdyke and 
others reminded Gen. Fremont that when a candidate for the Presidency in 1856 he 
was weakened by pecuniary embarrassments." Is that true? A. That statement is 
not correct. 

P. Was there one word mentioned to you on political subjects by these gentle- 
men? A. There may have been; there was nothing said to me that was personal to 
myself, as intimated there — nothing of that kind. 

Q. " And that as his friends intended to run him again, it would be wise to put his 
affairs in better shape " Did that occur ? A. I have no recollection of anything of that 
kind^ I am very sure there was nothing of that sort. 

1 Q. It proceeds : " The General assented." Is that true or false ? A. The character 
of that is shown by the previous testimony. 

Q. " Giving to Messrs. Opdyke, D. D. Field, and Ketchum a schedule of his debts." 
Is that so? A. A schedule of the debts of the estate was given to these gentlemen 
early in the negotiation— one brought by Mr. Doj'le and another by Mr. Stevens^at the 
time of the offer, in the first conversation ; it was necessary to make them acquainted 
with it ; not a schedule of my private debts, but the debts of the estate ; the list I gave 
was a list of the debts of the estates ; they were not required to pay my private debts. 

Q. The $280,000 bonds you have been asked about, were they not all applied to the 
payment of the liens? A. I believe that they all were; I so understood it; the ac- 
counts of the company show that they have been. 

JRe-direct : Are you able to say that, during the period of time these negotiations 
covered, you had no political conversation with Mr. Field or Mr. Opdyke, or any of those 
other gentlemen ? A. No, I cannot say that ; but I can say very distinctly that no con- 
versation of that character took place. 

Q. None in which your debts were brought in connection with the subject of politi- 
cal purposes? A. No ; I can say so distinctly; for the reason that I myself intended 
to avoid, and did avoid, any such conversation as that; there were the usual prelimi- 
nary conversations that occur bettveen men when they meet together — political and 
military — but nothing personal ; I intended to avoid such conversations, and did ; I did 
not intend that gentlemen with whom I had business relations should suppose that for 
that reason I would attempt to obtain their friendship in any other way. 

Q. You were nominated for President during the last campaign ? A. Yes. 

Q. What was the beginning and end of those negotiations in point of time ? A. I 
think about the first of September, 1862 ; the proposition was made to Mr. Ketchum, 
and he was paid on the 2d of July, 1863. 

Q. During that time, how many occasions did you have for professional interviews 
with Mr. Field ? A. There were many such occasions ; it would not be possible to re- 
member them ; they were very frequent, because the negotiation was diflScult and long ; 
a meeting would usually take place on the receipt of any telegram, or letter, or upon a 
reply; with the details in Califoi'nia we had nothing to do here, except to receive the 
reports, and be informed of what progressed there ; there were frequent letters and 
telegrams; probably on some occasions letters and telegrams were received from 
California daily. 

Q. With the exception of the visit of Mr. Doyle, the attorney, was there any agent 
from the other side with whom those interviews were needed to be had by Mr. Feld? A. 
Simply Doyle. 

Q. Was Mr. Billings a lawyer ? A. Yes, and Parke also; Seloverwas not; he was 
engaged in other business at San Francisco. 

Q. Did the shares of Parke or Billings, or Selover contribute to any of these bur- 
dens of getting this property into shape, or did it all fall upon your five-eights ?• A. It 
has all fallen on my five-eights ; there is still unsettled controversy on that point with 
those gentlemen ; but, as it now stands, it has fallen upon my five-eights. 

Q. Do I understand you rightly, that your proposition to Simon Stevens was to part 
with one-fourth of the estate, to cover all things in bringing it into availability ? A. Yes ; 
25,000 shares covered that proposition. 

Q. The 7,000 shares more were to go to Mr. Stevens, and include whatever was to be 
paid to counsel, and what was actually paid Mr. Field as counsel? A. Yes, sir. 



€4 

Q. In what stage of the matter did that 7,000 shares additional come np ? Ai It ap- 
pears, by the contract marie with Mr. Stevens, that it came up in January. 

Q. Those negotiations in Europe, to which your attention has been called, were all 
broken off at a period that the pending or threatening civil war prevented negotiations ? 
A. Yes, sir ; I was informed that in the near prospect of civil war, it would be impossi- 
ble to make any advantageous arrangement in London ; Mr. Billings wrote to me from 
Germany that, if the estate were of solid gold, no arrangement could be made there ; I 
acquiesced in that view. i 

Q. Was there any dispute or difficulty as to the right of the other owners— Selover 
Parke, and Billings— that these gentlemen here had to attend to; was not their shares 
fixed and understood as between them and you ? A. Yes, absolutely. 

Q. These gentlemen here did not do anything toward arranging their relation to the 
property? A. No ; they might have contributed a friendly aid; there was no dispute 
in which these gentlemen were involved ; the controversy was between Mr. Parke and 
myself, so far as there was any ; these other parties had nothing to do with it. 
, Q. Did they contribute any money toward working or arranging any of the diffieyl- 
ties between you and any of these associates ? A. They did, to the extent of advancing- 
money to me personally - -amounts which were required in settlement. 

Q. Of the debts of the estate? A. No'; in respect to the portion of those debts 
which belonged to the different proprietors; there was such an advance made in tie 
case of Major Selover— a temporary advance by Mr. Ketchum, as my banker. 

Q. Did any of these associates pay any money of their own in discharging any of the 
debts of this estate — whether liens or not liens — or were they all provided for and dis- 
charged out /■/ the credit of the new company ? A. I suppose that thej were finally to 
be provided for out of the credit of the new company ; whether or not, in the early 
stages of the existence of the company, these gentlemen advanced money themselves, or. 
took a certain number of bonds, I do not know ; I have understood that they did, but i 
do not know. 

Q. But otherwise, do you know of any contribution of money or property, in any way, 
toward making up the capital of this company, which was held for its debts,: and which 
its stock represented, except the Mariposa property? A. No, sir. •'- • 

Be-cross—Q. Did they not advance the whole money, to the amount of $1,500,000 ta 
pay the debts of the estate ? A. I have answered that ; I do not know whether they ad- 
vanced the money and took the bonds, or whether the lands were sold ; I know they ob- 
tained money and the debts were paid ; I did not know of bonds selling at 70 ; recently 
they have been quoted at par ; they have been below par ; they were not below par, I 
think, at the formation of the company. 

Q. You were asked if you were a candidate forthePresidency ; did any one of these 
gentlemen do anything whatever in reference to your nomination ? A. Certainly not, 
to my knowledge ; if you mean to ask whether these gentlemen were politically friendly 
to me or not, I can say that I never considered them so, except, perhaps, Mr. Hoey, and 
of him I know nothing particular. 

Q. I think you will say emphatically that, so far as your counsel is eonq^rned, you 
understood he was not? A- Yes ; I never held him to be a political friend. 

Q. In the course of the negotiations, were there not a great number of telegrams 
back and forth from California? A. There were many telegrams, sometimes an expense, 
of $150 a day for telegrams, day after day. 

Q. Why did you give the subsequent 7,000 shares to Mr. Stevens? A. Because of 
some disagreement between the other gentlemen— Ketchum, Opdyke, and Hoey— as to 
the amount he should receive; he had no right to claim it from me ; he might have 
had a right to claim it from the other gentlemen ; I gave it voluntarily, for the purpose 
of facilitating negotiations. 

Q, Except the suits settled, are your other suits in Mr. Field's hands ? A. Yes; oner 
is by Mr. Loren Jones against me. ; 

Re-direct Examination— Q. Do you know whether Mr. Stevens, received any part of 
the 25,000 shares that went to Ketchum, Opdj'ke, and Hoey? A. I do not know ; 1 haye' 
not been informed he did. :- 

Re-cross — I presume that Mr. Ketchum and his friends advanced Hoey's expenses to 
California ; I did not hear of their being paid any other way ; they paid expenses of 
telegrams, amounting, as I was informed, to $150 a day for a period. 

Be-direct — Do not know the amount of Hoey's expenses ; I did not ask these gentle- 
men to advance these expenses during the progress of the negotiation, as personal debts 
of mine; I understood, as a matter of course, that th«y were expenses belongiog-to the 
formationof the company. : : i 

TESTIMONY OP T. C. FIELDS. v^ 

Thomas C. Fields, sworn — Examined by defendant's counsel — I was employed 

as counsel by the Committee of Supervisors on Eiot Claims, on behalf of the Citjr 



^r;s^ 



65 

and County; went there first on August 20th, 18G3 ; claimants made written 
statements, an^l my examination was in the nature of a cross-examination on tliose 
statements. When we came to the claim of Mr. Farlee, Mr. Blunt said to me 
that he desired to investigate this claim himself, for the reason, as he stated, that he was 
an expert at the business, and he thought he could conduct it better, or as well as I 
could ; he said lie did not desire me to be present; I was in the room, conducting other 
examinations, at the time the examination of this claim was proceeding ; I heard por 
tions of the testimony, as I was sitting near ; when Mr. Blunt was ready to report, I 
protested on the part of the city ; I objected to the action of ^the Committee upon the 
claim, and stated that I considered it my duty, on behalf of the city, to suggest the pro- 
Ijriety of examining witnesses on the other side, that all the parties that had been ex- 
amined, with perhaps one exception, were the agents or the employes of Mr. Farlee or 
Mr. Opdyke ; I used Mr. Opdyke's name at the time ; I stated I thought General Whit- 
ney, who was in the cfty, and who had been four j-ears Superintendent of the Springfield 
Armory, should be examined in regard to the arms, as he was familiar with guus and 
with the machinery for making them, and with this very arm; I stated this to the com- 
mittee, to Mr. Blunt; they wereiill, or a majority of them in the room ; Mr. Blunt said 
he was satisfied, that he was ready to report on the claim, and ready to act uponit; 
I then stated that it was a matter, as the Maj-or was connected with it, and tliey were 
all members of the City Government, about which there might be some public "discus- 
sion, and I suggested the propriety of having the investigation as thorough and exact as 
it had been in other cases; it laid over a day or two ; no witness was examined, and 
the claim was passed ; I was present when it was passed ; Mr. Purdy. Mr. Opdyke, Mr. 
Ely, Mr. Blunt, Mr. Davis, aud the Comptroller were present : I think a full committee ; 
Mr. Opdyke made a statement i^ regard to the claim ; I think he said that a large por- 
tion of the claim came to him ; that he was interested, and did not desire the committee 
to be controlled by what he said. » h 

Q. What did he say further? A. T do not know ; only he said that the loss had been 
more than the claim, in his judgment; as they were passing on the claim, I suggested to 
Mr. Purdy the indelicacy of ?\Ir. Opdyke remaining present when the vote was taken, 
or voting on the claim ; Mr. Purdy suggested to \Mr. Opdyke, and Mr. Opdyke either 
walked out of the room, or to the door, when the vote was taken ; the claim was then 
passed, after a deduction of $199,700. ■ ^ 

Q. It was not referred to the Fire Committee, or any one ? A. Xo, sir ; it was passed 
I think, the second meeting after the investigation ; one gentleman proposed that they 
should pass the claim, deducting the odd cents ; another suggested that that wcTuld be a 
ridiculous reduction ; I think the suggestion of the $199,700 was made by the Comp- 
troller. 

Q. Were there other claims for guns before the Committee ? A. Yes, quite a num- 
ber ; the examination on those other claims, were most thorough and extended, to my 
mind ; Mr. Blunt had the supervision of these claims, too ; witnessess were examined to 
reduce the amount ; I recollect the claims of Mr. Emerson, Mr Remington, and one rep- 
resented by Major Taylor ; there was a most thorough investigation of these cases, and 
witnessess examined on both sides ; I was present when several were investigated. 

Q. Did you have any conversation with Mr. Opdyke in relation to this matter? A. 
Not in relation to the claim ; I had in relation to the contract for manufacturing guns ; 
it was before the fire ; Mr. Opdyke informed me that he had a contract with tlie patentee, 
by which he was to advance certain money, and I got the impression that he was to re- 
ceive a percentage of the profits — I think 60 or 65 per cent. 

Ooss-^xamin^d— There was no other case before the committee of the " destruc- 
tion of a gun factory, that I know of ; the other cases of guns were of parties whp had 
guns stored, or where there w^re guns in hardware stores ; I did not take part in all the 
claims that were disposed of ; other investigations were conducted by single Supervi- 
sors, sometimes one"member, sometimes another ; subpoenas were issued for witnesses la 
some cases ; I suggested in this case to send for Mr. Whitney, Mr. McNeil I think, the 
patentee himself, and some others ; Mr. Whitney had examined the machinery, and was 
familiar with it. 

Q. Do you mean to say your recollection is distinct that you suggested Mr. Opdyke's 
leaving the room? A. It is very distinct; Mr. Opdyke had said nothing about leaving 
the room before I suggested it ; if he had I would not have suggested it ; I do not think 
this claim was put to the vote more than once. 

Q. Was any other claim put to the vote while Mr. Opdyke was there ? A. There may 
have been, but I think Mr. Opdyke was sent for when this claim came up to be passed 
upon; I think Mr. Purdy stated he would not consent to the passage or consideratioa 
of the claim unless the Mayor and Comptroller were present, and he sent for them. 

TESTIMONY OF EDGEWORTH BROWN. 
Edgbwokth Bkown, sworn. Examined by defendant's counsel : I have had aa expe- 
5 ' : 



66 

rience of ten years in selling machinery, and five or six years in the trade ; am engaged 
selling machinery for the Stover Machine Company; machinery in use from as early in 1862 
to July, 1863, would depreciate forty to fifty per cent. ; the tools used in a gun factory 
■would depreciate about the same; after a shop is once started and complete, 150 men 
being employed, two or three men would be enough to keep the tools in order ; the, 
machinery that we [Stover Machine Company] put into the factory must necessarily 
have depreciated from the time it went in i;p to the time of the fire ; we furnished a large 
lot of milling machines and some engine lathes ; I am now connected with the Stover 
Machine Company ; I have examined the books ; I made out the list produced here and 
used in evidence ; it is a coi-rect list of what we furnished this factory. 

Cross-examined. There are two kinds of milling machines ; they vary in price ; the 
price at which we sold was about $265 ; fro-m December, 1862, to July, 1863, machinery 
would depreciate from to 10 to 15 per cent. ; can't say how soon'machinery in a gun fac- 
tory would be used up ; when I speak of depreciation in value, I mean what it would 
bring in the market, if taken out of -the -factory as second-hand ; Mr. Stover is not con-- 
nected with the .factory now ; can't say when he left ; the value of an engine-lathe 
depends very much upon the number of inches of swing. The witness was examined as 
to the value of engine lathes and di'ills, &c., and counsel for the plaintifi'put in evidence 
eight bills made out by the Howe Machine Company, for macliines supplied Mr. Marston 
in February, March, and April, 1862 ; in v/hich four screw lathes, freight and carriage 
were charged $691 ; one milling machine, carriage and freight, $279; one milling machine, 
milling jaw and freight, $303; another milling machine, freight and carriage, $279; two 
milling machines, freight and carriage, $598. 

TESTIMONY OF PHILIP TILLltCHAST. 

' Philip TiLLiNGHAST, sworn. Examined by defendant's counsel: lama commission 
merchant, of the firm of Hunt, Tillinghast & Co. ; had a conversation with Mr. Opdyke 
after the fire of July ; i told hini I had a letter from a friend who was making guns for 
the Government, and had about filled his contract, who would like to deliver some to 
him ; he replied that he did not want any guns ; that he had no gun contract. 

TESTIMONY OF WM. C. CHURCHILL. 

Wm. C. Churchill was sworn and examined by defendant's counsel : In 1845 or 1846 » 
I first furnished, army blue cloth to the Government ; along to 1858, had contract with 
the Quartermaster's office in Philadelphia; in 1861 Col. Crossman was Quartermaster; 
in 1861 1 had a contract with liirn for army-blue and sky-blue cloth ; I made three con- 
tracts for Mr. Opdyke with the Quartermaster; the first was for 15,000 yards full blue 
cloth; the second for 65,000 yards do.; the third for 16,000 yards do. ; all about the fall 
of 1861, or early winter of 1862 ; my brother and Mr. Hitchcock had a contract with the 
Government for 28,000 blue infantry coats about the same time ; Mr. Opdyke executed 
it, or parties connected with him ; I think my brother was to have a shilling a coat after 
they were delivered and paid for by the Government ; I do not know of any other con- 
tract in which Mr. Opdyke was interested ; I had an interest in this last contract; the 
claims of Mr. Hitchcock and my brother were assigned to me, and I charged it to Mr. 
Opdyke, from whom Ihad bought goods, for which I owed him ; it will be turnedupon 
my debt in settling ; I settled with my brother for 12|- cents a coat. 

Q. Did you go to Philadelphia to get any clothes turned in or sold to the Quarter- 
master? A. I do not know that !• went particularly With reference to these goods; I 
attended to them while there, and urged their passage at the request of the parties who 
manufactured them, Mr. Carhart and Mr. Smith. 

Q. Had Mr. Opdyke anything to do with it ? A. As he bought the contract, I sup- 
posed he had an interest in it ; Opdyke & Co. had the contract, or, rather, the contract 
was made with Opdyke and Co., but the orders to execute were issued— one to Smith 
for 16,000 coats, and one to Carhart for 12,000. 

Q. By an arrangement with whom? A. I suppose with Mr. Opdyke ; I don't know 
about that. 

Plaintiffs counsel objects to this inquiry. 

Defendant's counsel offers to prove that Mr. Opdyke had the contract, that he got 
other gentlemen to make the goods under it, and then they were taken to Philadelphia 
and put off there . Admitted. Plaintiff' excepts. 

Witness — There was an excess of goods — more than the contract called for ; which 
I went, at Mr. Opdyke 's request, to try and get the Quartermaster to pass. 

Q. Did you succeed? A. I believe not. . , 

The cloth under the three contracts I named was delivered at Philadefphia £^nd ac- 
cepted. 

I think Carhart and Smith had the written contracts for the coats ; and Opdyke and 
Company for the cloth ; the contract ifor coats was issued to my brother a^d Mr. 
Hiitchins. ....gi.x.j 

Adjourned to 10 o'clock to-morrow. ft - . 



^/)C 



EIGHTH DAY. 

THURSDAY, DECEMBER 22d, 1864. 

The cross-examiuation of William C. Churcliill was reserved until after the examina- 
tioa of Ms brother. 

TESTIMONY OP SAMUEL CHUECHILL. 

Samuel Churchill, sworn. Examined by defendant's counsel. I live in this 
city. 

Q. State the Government contracts you had, that Mr. Opdyke at any time became 
-connected with, or had anything to do with? A. In the spriag of 1862 I had a contract 
with the Government to furnish them 16,000 army coats, made of piece-dyed blue cloth ; 
jt was made with Quartermaster Grossman, at Philadelphia ; that was the only contract 
I had in which Mr. Opdyke was conceruel ; when I sold that contract to Mr. Opdyke I, 
at the same time, negotiated a sale to Mr. Opdyke of the contract which Mr. Hitchcock 
had for 12,000 coats, of the same kind ; when my brother and I took the contract for 
10,000 coats, we designed filling it ourselves ; but my brother communicated to me that 
he could not find the goods the contract called for. (Objection to what his brother told 
him.) Mr. Opdyke had the goods, and we could not buy the goods of Mr. Opdyke at a 
price that would answer our purpose ; I went to Mr. Opdyke and negotiated the sale of 
the contract directly to him. 

Q. Why did you sell your contract to Mr. Opdyke? (Objected to.) There was no 
allegation in the libel that Mr. Opdyke had all the cloth. 

Objection sustained. 

Q. What was the sale and agreement with Mr. Opdyke? A. I simply sold the con- 
tract, or caused the contract to be assigned to Mr. Opdyke, for which he was to pay me 
a consideration of one shilling a coat on the 16,000 ; on the other 12i000 coats he was to 
pay the same price ; I received from Mr. Opdyke a written obligation to pay me ; my 
brother had an unsettled account with Mr. Opdyke; my brother took the claim from 
sue, and paid me for my interest. 

Q. Do you know whether Mr. Opdyke carried out these two contracts with the Go- 
vernment? A. To the best of ray knowledge and belief, he did, or caused it to be 
dote ; the contract was filled to the Government ; the deliver was made in Philadelphia; 
I had nothing to do with the completion of the contract. 

Q. Do you know about any other contract that Mr. Opdyke had with the Govern- 
ment? A. No, sir, nothing more than hearsay. 

Oi-oss-exaniined — Q. You say the cloths to be used for filling these two contracts 
with the Government could not be found in the market? Did you seek to find them 
yourself? A. My impression is tliat I did, but not to the extent my brother did; he 
made the inquiries chiefly ; we abandoned the idea of getting the cloth ; can't say if I 
inquired of two establishments in New York for the cloths ; Mr. Opdyke had piece-dyed 
cloths ; I don't know whether I got the information from seeing the goods, or from con- 
versation with Mr. Opdji'ke; can't say that I had a conversation with Mr. Opdyke about 
purchasing the goods, or that I asked him to sell them. My brother imformed me that 
he could negotiate the contract with Mr. Opdyke, but as it was in my name, he wished 
me to consummate it ; I have had other coi^racts with the Government for clothing ; 
I did not manufacture the garments myself, out ordered them to be filled by arrange- 
ment with clothing merchants ; I took contracts, then made arrangements to furnish the 
cloth to tailors to be made up, and I delivered them in Philadelphia and got paid for 
them ; I made contracts with others to make them up at so much a garment ; always 
carried out such contracts by means of sub-contracts with others. 

Be-direct— Q. Did you carry out the contract you sold to Opdyke in the way you car- 
ried out the others? A. No. 

ADDITIONAL TESTIMONY OF WM. C CHURCHILL" 

Wm. C. Chitrchill, re-called. My brother negotiated the sale of this contract 
with Mr. Opdyke. 

Oross-examined — I do not manufacture clothing myself ; have had a good many con- 
tracts with the Government for clothing; in one contract for 40,000 pairs uniform pants, 
I joined Mr. Garhart in the contract, for the purpose of making them, and divided profits, 
after expenses ; in all other contracts I had with Government I sublet, or hired the gar- 
ments made by contrect. In the contract sold to Opdyke for 28,000 coats, the trans- 
fers were made to Mr. Carhart and Mr. Smith i no transfer to Mr. Opdyke ; there was a 
mistake made in making the transfer ; Mr. Opdyke requested me to go to Philadelphia 
and have the 16,000 coats transferred to Mr. Carhart and the other 12,000 to Smith ; 
either through my mistake or the mistake of the clerk there, the 16,000 was transferred 



68 

to Smith, and the 12,000 to Carhart, I don't know who made the excess of 4,000 coats ; 
I suppose it was Mr. Smith; almost all the contracts I had with G-overnment were made 
with Quartermaster Grossman ; I had one from another Quartermaster ; Mr. Weed did 
not have anything to do with those contracts, or with my getting them ; I did not know 
Mr. Weed at that time ; my acquaintance with him has been made since. 

Q. Did yon know anything about an eifort made to remove Quartermaster-General 
Meigs, and have Col. Grossman appointed in his place ? (Objected to. Ofiered to show 
the witness's relations with Mr. Weed.) Admitted. A. No, sir, I never heard anything 
about it; I knew there was dissatisfaction with Mr. Meigs, but I never heard of any ef- 
fort to put Col. Grossman in his place ; after we transferred the contract for coats to 
Mr. Opdyke, I felt we had nothing more to do with it ; I did nothing more ; but when in 
Philadelphia I urged the goods being passed through. 

TESTIMONY OF HENRY P. SPAULDING. 

Henry F. Spaulding, sworn. Examined by defendant's counsel I am a commis- 
sion merchant, of the firm of Spaulding, Hunt & Co. ; commission merchant, in woolen 
goods ; have been in the cloth busines 30 years ; am familiar with it; I know Mr. Op- 
dyke ; in the autumn of 1861 1 sold to Mr. Opdyke a quantity, somewhere about 50,000 
yards of doeskins, in the white or grey state, prepared for dyeing, but not dyed ; Mr, 
Opdyke made a contract in my presence with a man named Scott, of Paterson, N. J., 
to have them dyed in indigo blue ; they were not dyed indigo blue ; judging from some 
of the goods I had occasion to look at after they were dyed, they were dyed with a com- 
position ; there might have been indigo in them, but they were not according to the 
contract, ; this dye is very inferior to indigo blue ; I judge it was a very bad dye, from 
the fact that Mr. Opdyke claimed from me a dollar a coat on 4,000 that were rejected I ; 
don't know why they were rejected ; I guaranteed that the merchandise I sold Mr. Op- 
dyke was capable of taking a good indigo-blue ; the goods were made up by Garhart & 
Smith; Mr. Opdyke said the goods were not capable of taking the dye, and that was 
where the controversy arose between us ; Mr. Opdyke told me 4,000 coats were rejected, 
andsmade a claim on me for $1 a coat, because they had been rejected and would not 
pass. 

Q. Do you know whether thesewere the 4,000 coats that were attempted to be got 
in Philadelphia. A. I do not. It takes about 2J yards to a coat ; in the condition I sold 
the cloth it was 85 cts. a yard. 

Q. Did you pay this claim of $1 a coat to Mr. Opdyke? A. No ; Mr. Opdyke with- 
held the money that was due to me on the cloth, and I endeavored to do as I gene- 
rally do in such matters — to get out of it with a compromise ; I consented to adjust it, 
by allowing $1,700. 

Oi-oss-examined—Tlie goods I sold to Mr. Opdyke were my own ; I bought them of 
the manufacturer after having sold them to Mr. Opdyke ; I sold them by sample, and 
then went to Burlington, Vt., and bought the goods ; did not tell Mr. Opdyke that they 
were goods consigned to me; the contract I made with him was for 50,000 yards ; I 
can't say how much I delivered ; the contract to dye the cloth was made with Mr. Scott, 
in my store ; Mr. Scott said he could dye the goods ; I introduced him to Mr. Opdyke ; 
Mr. Scott had been a dyer of cotton goods — one of the best cotton dyers ; it was dis- 
cussed whether he could dye woolens ; I thought he could ; the goods I sold were not de- 
fective, in my opinion; Mr. Opdyke claimed that they were ; he told me some of the 
goods were afterwards sent to a Staten Island dyeing establishment, to be dyed over ; I 
know they were not indigo-dyed by Scott, Because I sent strips to the manufacturer, 
and they came back to me stripped of color, and nearly in the state in which they were 
delivered to Mr. Opdyke, which is proof that they were not good indigo-blue; my im- 
pression is that what was afterward sent to Staten Island was indigo-dyed, but the 
goods were so bedeveled before that by Scott that they could not be made a good 
color. 

Q. Did Mr. Opdyke make the contract with Scott to dye the goods before he told 
you he would take them? A. Mr. Opdyke told me he would take the goods, provided! 
he could get them dyed; there were so many transactions of the same nature it 
was diflScult to get them dyed ; I suggested to Mr. Scott, and he conversed with 
him. 

Q. How much did you deduct from your bill in consequence of this alleged imperfec- 
tion? A. Not a penny ; I deducted $1,700 to avoid a controversy that would lead to 
law : Mr. Opdyke claimed nearly $10,000 ; I allowed $1,700, because I could not get my 
money without a loss ; I thought it was kept unjustly ; I take my hand out of the lion's 
mouth whenever I can. 

TESTIMONY OF THOMAS SMITH. 
Thomas Smith, sworn. Examined by counsel for defendant. I am hi the clothing^ 
business in this city, corner of Canal and Broadway, and in Fulton street ; I formerly 



n 



69 

had two stores in Fulton street ; I had a contract for the State of New York for making 
4,000 or 5,000 soldiers' garments, in conjunction with George Opdyke & Co.; I think Op- 
dyke got the contract — lam not positive — from Governor Morgan; it was for 2,000 
overcoats, 1,000 jackets, and 1,000 pantaloons; the coats and pants were to be light 
blue, and the jackets dark blue; I thought I could do better by dividing profits with Op- 
dyke & Co., rather than buying the goods from them, if I got them at cost; our agree- 
ment was to divide the profits ; they furnished the goods and trimming at cost; the ar- 
rangement was mutually satisfactory, and the goods were made, delivered, and paid for, 
and I got my portion of the profits ; I also got a contract from Opdyke & Co. to make 
infantry frock-coats ; I was first oifered 20,000, but it was reduced to 16,000, and I ac- 
cepted it ; Opdyke was to furnish me the goods at cost and advance all the money to 
manufacture them that I wanted, giving me credit on the goods, and we were to divide 
the profits equally ; after I had made some 13,000 I found that instead of getting the 
contract for 16,000, that was given to Carhart; but I had cut out 1G,000, and I made 
them up and sent them to Philadelphia; 12,500 were taken and paid for — the others were 
returned, being in excess of the contract ; I stored them in my loft about two years, and 
at last sold them to Opdyke in the settlement; I lost on the whole contract between 
$4,000 and $5,000, on account of the excess and the delay in having them passed ; I do 
not know what Opdyke did witli the garments left over ; I understood he sold them , he 
named what he thought he could get for them — $2.50 I think ; the Government price was 
$6.87^; the cloth came from the warehouse of Spalding; I got a part of it from Opdyke 
& Co. ; it was piece-dyed doeskin ; my contract called for that; I know nothing about 
Carhart's contract, except that Opdyke, I think, told me it was on the same terms as 
mine ; I had better terms with him than Carhart ; at first Opdyke proposed to deliver 
the cloth to me at a certain price ; I declined ; afterwards he made me a better proposi- 
tion, by which the price of the goods was reduced ; I was not interested with Opdyke in 
any contract for sky-blue Kersey pants ; no man takes a Government contract but what 
he has more or less rejected ; there were some of Carhart's infantry frock coats re- 
jected on account of rotten pockets; they were afterward repaired and accepted ; they 
amounted to some thousands odd. 

Q, Do you know anything about a contract for fiannel blouses? (Objected to, the 
libel being " shoddy blankets.") 

Mk. Evarts — The answer sets up in justification " either blankets or clothing." 

The Co0rt — The evidence must be addressed to the publication as made. I will al- 
low you to prove any contracts, however. 

A. I do not know anything about any contract for blousesin which Opdyke was inter- 
ested; the prices of the garments I have spoken of were: for the jackets, $4.50 ; for 
the pants, $3.25 to $3.75; for the overcoats, $9-50; In the Philadelphia contract the 
price was $6.87^, of which 12J cents were to go to W. C. Churchill. 

Cross-examzned— That was the price for which they were sold to the United States ; 
it was too low; there was a profit in it for a large contract, which would have paid 
very handsome; the price charged to tlie State was about fair; I bought a portion of 
the cloth outside, of others, for the United States garments— the 16,000— but Opdyke 
furnislied the majority of the goods ; one-third were not the Spalding goods ; I bought 
on my own credit alone ; some of the garments were injured by delay in inspecting 
them in Philadelphia; by Churchill's advice, I sent a young man with the goods, and 
they were put in the arsenal, and when I found I could not get a receipt I went and dis- 
covered them covered with canvas, and lying in three inches of mud and water ; they 
said each contractor had to take his turn and come at a particular time according to 
notice ; so I took them out and hired a room for them, apprising the officer of the facts ; 
he assured me I should not lose the goods ; a portion of them were taken ; and he would 
have taken the excess but Capt. Cruser would not accept them because he would not 
have any more piece-dyed goods; thej' were woith very little, if anything, when they 
came back i I do not know any clothing manufacturer who would give over a dollar a 
piece for them in consequence of the injury they had sustained ; infantry frock coats are 
worth nothing if the Government don't accept them; Opdyke carried out every agree- 
ment he made with me fair and square. 

Q. (By Mr. Evarts.) To your satisfaction ? A. No, I cannot say to my satisfaction. 

Q. You had a difference with him? A. I certainly did. 

Be-direct — On the State contract we made about 75 cents to $1 on each of the 
2,000 coats, 50 to 75 cents a pair on the pants, and the same on the jackets ; on the 
United States contract in the settlement I gave Opdyke the coats that were left over, 
and gave him my check for $4,550, being that amount out of pocket; the diflBculty was 
about the settlement ; what Opdyke lost I do not know. 

TESTIMONY OF SETH C. KEYES. . 
Seth C. Ketes, sworn. Examined by counsel for defendant— In 1861-2 I was inspect- 
or of clothing, blankets, and army equipage for the United States, in the office of Col. 



<^ 



to 

Vinton, the only office in this city ; Opdyke furnished between 50,000 and 60,000 blankets 
in 1861-2, amounting to from $175,000 to $200,000, which were inspected by me and is- 
sued to the army. 

No cross-examination. 

TESTIMONY OF F. E. BACON. 

Frederick E. Bacon, sworn. Examined by, counsel for defendant — I was inspector "f 
clothing, piece-goods for the United States Government, under Col. Vinton ; there were 
received from Opdyke abont 20,000 yards of three-fourths dark blue coat cloth, and 
50,000 three-fourths dark blue flannel ; the price of the coat cloth was $1.12J, and the 
flannel about 60 cents per yard. 

Gross-examined — The goods were passed according to contract made in pursuance to 
proposals issued by the Government. 

Be-direct— Some goods were rejected, as is always the case. 

TESTIMONY OF THOMAS F. CARHART. 
Thomas F. Cabhart, sworn. Examined by counsel for defendant— In 1862 I was a 
clothier ; the plaintiff was interested with me and other parties in Government contracts. 
Witness here exhibited a memorandum of numerous contracts in which the plaintiff was 
interesied with him, commencing with the 24th of September, 1861, and ending 4tli of 
May, 1863, amounting in the aggregate to about $4,800,000 ; Opdyke's interest in one 
portion was one-half the profits, in another one-sixth, and in anoither one-third ; and the 
contracts were procured in the witness's name. Opdyke going security for perform- 
ance ; Opdyke's share of the profits on the whole was $172,000. 

List of Contracts for Clothing made and filled by Thomas F. Garhart, in which George 
Opdyke & Co. had an interest. 

WITH THE UNITED STATES GOVERNMENT. 

L861. Quantity — Article. Price. Total. 

Sept. 26.. 30,000 Cavalry jackets $6 12>^ $103,750 

" 24. . 30,000 Infantry frocks 6 87>^ 206,250 

Nov. 4.. 3,000 Overcoats 7 00 21,000 

'• 22.. 5,000 Cavalry overcoats..... , 8 50 42,500 

" 22.. 16,000 Frocks 6 87>^ 110,000 

Dec. 11.. 36,000 Frocks 6 87>^ 247,500 

' 21.. 25 ,000 Frocks 7 00 175,000 

" 27.. 50,000 Frocks 7 00 360,000 

.'. 3,400 Yards green cloth 2 75 9,350 

..25,000 Knit drawers 91% 22,916 

.. 9,000 Canton flannel drawers 67 6,030 

..25 000 Blue flannel drawers 1 11 27,750 

.. 9,000 Blouses 2 91 164,600 

..50,000 Blouses 2 45 122,500 

. . 50,000 Blouses 3 02 151,000 

..50,000 Infantry trowsers 3 60 180,000 

..75,000 Infantry frocks 7 00 525,000 

..40,000 Blouses 3 02 120,800 

..30,000 Oveicoats 9 75 292,000 

. . 6,400 Overcoats 9 75 62,400 

.. 8,500 Overcoats. 9 90 85,140 

.. 5,000 Overcoats -. ; 9 00 45,000 

..20,000 Cavalry trow-sers. 4 70 94,000 

..10,000 Infantry trowsers 3 70 37,000 

. . 15,000 Infantry frocks 7 00 105,000 

..30.000 Infantry overcoats 9 75 292,500 

..10J800 Infantry trow.sers 3 40 36,720 

..15,000 Blouses 2 10 42,000 

. . 8,000 Frocks 7 37K 59,000 

.30,000 Shirts 147 44,100 

.. 5,000 Cavalry overcoats 11 75 58,750 

..40,000 Blouses 3 20 128 000 

..100,000 Shirts ..• 1 55 155,000 

186.3. 

Feb. 23.. 10 ,000 Shirts 1 55 16,500 

" 23.. 2,500 Cavalry trowsers 4 63 11,550 

April 6.-10,000 Blouses ■. 3 12>^ 31,250 

" 13.. 25 ,000 Shirts 1 75 43,750 

May 4.. 5,000 Blouses ; 2 90 14,500 

Total.... .$4,419,606 



1863. 


April 23. 


July 


2S. 


" 


23. 


a 


82. 


Auff.. 


4. 


11 


29. 


11 


29. 


" 


29. 


Sept. 


1. 


" 


1. 


11 


3. 


11 


19. 


11 


19. 


11 


26. 


Oct. 


is". 




15. 




16. 




21. 




21. 




29 


Nov. 


13. 


Dec. 


11. 


'< 


22. 



/(I 



n 

WITH OTHERS THAN THE (JOVERNMENT. 

Parties. Quantity. Articles. Price,. Tbtal. 

SmithBros •. 3,732 Infantry overcoats.. $7 75 $23,923 00 

SmithBros 652 Cavalry overcoats 9 75 "" 6,357 00 

SmithBros 302 Cavalry overcoats 9 75 2,944 50 

Read&Co 4,953 Gray overcoats 7 50 37,147 50 

Read & Co 3,088 Blue overcoats 8 80 27,174 40 

Eames 20,168 Infantry pants 3 37>^ 68,067 00 

20,748 Cavalry pants. . . . ' 4 50 93,366 GO 



Total • ,. $4,683,585 4$ 

Amount of liet profits paid by Thomas F. Carhart to George Opdyke & Co., on the 

above contracts. $172,359 55 

Cross-examined — The contracts ■were all fair, and were fully and faithfully executed ; 
Opdyke advanced all the capital ; the last delivery was madcin June, 1863, to complete 
the contract of May 4, 1863 ; after that Opdyke had no interest in contracts whatever ; 
we received in pay certificates of indebtedness, vouchers, and some money ; the certi- 
ficates bore interest for twelve months ; the vouchers bore none ; the vouchers sold in 
the market from about 92 to 96 ; up to the 25th of March, 1862, we received vouchers 
alone, und Opdyke had to carry fully a million of dollars ; the contractors got nothing 
from the Government unless they sold these in market ; after that they got part money 
and part certificates, and sometimes one-quarter, sometimes one-half money, or for 
small amounts sometimes all money ; the certificates were always below par, say be- 
tween 92| and 96 or 97, 

Q. If they had sold these burdens in the market instead of carrying them, would 
there have been any profit at all on the contracts, and if so, what? A. I do not think 
there would have been any at all. 

Q. Were any of these contracts obtained by Opdyke, or any member of his firm? 
A. No, sir. 

Q. Was there any secrecy in the arrangement between you and Opdyke? A. No, 
sir ; when I bought the goods, I did it generally on his credit, and had the bills sent in- 
that firm. 

Q. Were not such arrangements as these, to share the profits, very common ? A. Yes, 
sir. 

Q.' Are there not eminent firms in New York engaged in that practice ? (Objected to 
and excluded.) 

JRe-dired— The last settlement with the Government, I think, was on the 18th of Au- 
gust, 1863, but the mass had been closed before ; I conducted all the purchases ; as mall 
portion were with my own money ; it was known that Opdyke was interested ; there 
was no publication of the fact, except in buying and selling the gouds ; the sellers knew 
that he participated in the profits ; I told them ; I presume they did not know the shares ; 
most of the purchasers were at 30 days ; some at 60 and 90, and some cash ; I got most 
of the contracts myself, at New York, Philadelphia, and Cincinnati, of the quartermas- 
ters — none at VVashington ; Opdyke gave his security in all cases ; it was not required 
that the security should be other than a party interested, only that no member of Con- 
gress should be admitted; all the expenses, interest, &c., that Opdyke had charged, 
went in before the profits were ascertained ; I believe Opdyke did obtain the contract 
for 16,000 infantry frock-coats ; we received from 7-30s in payment, which were sold be- 
low par ; that was the only case in which the securities were sacrificed by Opdyke ; I 
had very little to do with the financial part ; when I wanted money I went there and got 
it ; we had a controversy about the 7-30s ; I insisted upon their being sold ; I think they 
brought about 99|, and the quarter was charged into the account — properly so ; I pre- 
sume the certificates were not sold above par, they were not convertible. 

Re-cross — We did not sacrifice the securities ; the contract I got of Opdyke was the 
Churchill contract ; I paid about one-fifth of the cost for the making up ; we kr.d large 
facilities for making clothing ; our establishment is over the American Express Company 
in Hudson street. . ' ' 

TESTIMONY OF WM. B.COGSWELL. 

Wm. B. Cogswell, sworn. Examined by counsel for defendant — I have been engaged 
about 11 years as a machinist ; the depreciation in gun machinery in use from early in 
1862 to July, 1863, would be from 50 to 60 per cent ; the number of tool-makers required 
for 150 men, after being first finished, would be three or four. 

Gross-examined — I am now master machinist at the Navy Yard, and superintend re- 
pairs and construction; I never made or used gun machinery; I know considerable 
about it ; my estimate of the depreciation is based upon its being sold in the market, and 
not the value of it to the men using it. 



t2 

TESTIMONY OF CHARLES P. HAUGHIAN. 

Charles P. Haughian called by defendant— I am a gun-maker ; I have been such all 
my life, except nine months that I worked in a machine shop ; the depreciation in gun 
machinery in use from early in 1862, to July, 1863, would be from 50 to 60 per cent ; to 
keep machinery in repair for 150 men would require a great number of men, probably 
twenty ; where the factory is supplied with tools it would need seven or eight men, may 
be more ; I mean small tools and milling machinery, but not engine lathes ; if the busi- 
ness was conducted by the day, and the proprietors agreed to keep up the tools, it 
would require twenty-five or thirty men ; business is usally done by piece work ; in that 
case the men keep up the tools ; if it was conducted in that w.ay in this establishment, 
it would require about three men to keep the tools up. 

Cross-examined— U the guns are not made by piece work, it would require from 
twenty-five to thirty-five men where they turn out fifty guns a day. I never sold any- 
thing but sejDarate parts of the machinery of an establishment. 

• TESTIMONY OF WM. THOMPSON. 

William Thompson, sworn. Examined by defendant's counsel— Am a machinist and 
tool-maker ; have been since January, 1846 ; I was engaged in this factory prior to the 
fire in July.; on that day I was in the Armory, within 15 minutes of the time it was set on 
fire ; I commenced work there in August, the year before ; remained a month ; was 
away until the following February, then went back, and remained there till the factory 
was burned f I knew a good deal of the condition of tools and machinery ; in the first 
place, the tools were got up at the expense of the company, until the job was nearly 
ready to go on with, and theii it was let by the piece to about ^k different parties ; I 
took my job on the verbal agreement with Mr. Keene, the superintendant, that I should 
take the job as it stood, with the tools, I making any additional tools at my own ex- 
pense, and they furnishing the stock and material ; that was the case with the rest ; it 
was the way in which the business was conducted,; I have got a book or memoranda of 
all the parts 1 completed up to the first of July , I first commenced contract for piece 
work on 13th April, 1863, and coptinued until the fire terminated it ; I have a memoran- 
dum of what I expected to make the tools for on my job- 

Q. At what price did you contract for in your work for the parts' for labor and 
finishing? A. The tip part was 10c. ; trigger part, 20|c. ; trigger 6c.; trigger part or 
lever-ketch, 4c.; barrel-spring, 3c. ; ketch-spring, IJc". ; here were the actual prices 
paid me. 

ADDITIONAL TESTIMONY OF HENRY D. STOVER. 

feKNRT D. Sto^vtsr; re-called— refers to the light bills put in evidence yesterSay, 
headed "William W. Marston bought of the Stover Machine Co. ;" these were not the 
bills paid ; these are merely invoices that we send with goods ; when we come to settle 
a receipt is given in the receipt book, and a settlement is then made according to the 
understanding at the commencement of the trade ; sometimes we take oft ten per cent, 
which would not appear on the invoices ; these were not paid as they are here ; Ave sold 
and delivered ten milling machines at $275 a piece, which I received pay for ; there were 
five milling jaws sent at $20 each, four of which were retui-ned and $80 credited. 

Q. State the aggregate of money you received ? A. $6,656.34. 

Q. Do you know whether the statement you produced comprehends all the items in 
these eight bills? A. I do not know ; it contains all I ever sold and got paid for. [Re- 
tires to compare the bills and his list.] These eight bills are' on my list, but differ in 
amount ; the eight invoices do not include all we supplied. 

Cross-exa?mned— The bill of March 22, 1862, 4 screw lathes, $691 was paid; the bill 
of February 24, 1862. engine lathe, 6 feet bed, &c., $255, was not paid as there ; $230 
was paid instead ; bill of April 8, 1862, a milling machine and cartage, $279 was paid ; 
the cartage was paid as a separate item; the bill of April 19, 1862, was all paid except 
the jaw. 

Q. Will you say there was a deduction on any of the articles named in these eight 
bills, except the 7 feet bed, reduced from $255 to $230 ? A. I cannot ; I would not swear 
to these at all until 1 went through them ; milling machines can be worked without 
jaws; it is a usual thing to put jaws in; do not know whether Marston put on other 
jaws when they returned mine. 

Q. (By juror). I understand you to say that the cost of njilling machines was $275 ; 
did that include the cost of delivery at the factory ? A. No sir ; I testified as to what the 
machines were worth, not the extra cost for freights, &c. 

Q. Since you were examined, the day before yesterday, did you reflect about my 
question to you as to your alleged conviction ? Were you sentenced to pay a fine and 
be imprisoned? A. 1 was not to my knowledge. 

Q. Do you know Charles B. Sedgwick? A. I do, very well ; I know he gouged me out 
of $10,000 at the Fort, while another lawyer gouged me out of $25,000. 



/ // cy 



13 

Q. You got out through Mr. Sedgwick ? A. No, sir. 

Be-direct.— Q. Tell us what you mean by Mr. Sedgwick getting money out of you 
while in the Fort ? A. As I stated the other day, I was to Washington to attend to my 
business, and I got into a difficulty by detecting a fraud in the Boston Navy-Yard and 
reporting it to the Navy Department ;,il came home from Washington with Mr.fBaker ; he 
kept me three or four'days, and started to go with me to see an officer at the Navy -yard, 
as he said ; I had a nice over coat, which now would be worth $125 ; he said he had 
none, and borrowed mine ; when we got to the Navy-yard, I was put on a tug and sent 
to the Fort; the nest week Mr. Sedgwick came down to see me ; he said that he had 
my release in his hands the Saturday before, and that Baker went back and told Captain 
Fox some very hard stories I had said in regard to him — when I never said one word 
against him or Secretary Welles in my life — right the reverse of that; that he (Mr. 
Sedgwick) was seen on Sunday nighi and takeu to Secretary Welles and the release 
taken away because I had said something about Captain Fox ; and afraid I should en- 
lighten them in regard to frauds that had taken place, they thought it better to keep me 
there, where I would be perfectly safe and out of the way ; he said I would be there 
only a few days— that they wanted to ascertain how much I knew ; John H. Cheever had 
a power of attorney from me, connected with ijay interest in the Stover Machine Co_. ; 
Sedgwick went to Mr. Cheever, knowing he had a power of attorney, and collected in 
all from him $9,000 to pay Government officials to help me to get all right ; D. M.Porter, 
a lawyer, knowing that I was coming out any way, came to the Fort, for the purpose of 
getting bonds for my appearance in the Henderson case, and said to me, " I shall have 
to have about $25,000 to fix these naval orticers, or these officers." I said that looks to 
me as if it was pretty rough. Said he " I am your coimsel, and have done considerable 
business for you, and you know I wOl not do an3'thing wrong. Place the money in my 
hands, and I will expend it if necessaiy, and if not, I will pay it back to you." I said 
I wanted an agreement to that effect, and took one. In a few days I was released with- 
out anymore cermony ; and after a few weeks I began to ask Mr. Porter where my 
money had gone to ; he said he was not prepared to tell me. He said he wanted to 
give part of it to Mr. Wilson, who was Assistant District^ Attorney at Washington, and 
had all these matters ; he told another party that he wanted part of it to go Captain 
Fox in a roundabout way ; he has got my money, and I came to the conclusion that I 
was put there to be fleeced by some one ; I was kept in the Port five months and four 
days. 

ADDITIONAL TESTIMONY OP AINSWORTH BROWN. 

AiNSWORTH Bbown, re-called — Testified that the list produced by Mr. Stover was an 
exact transcript from the books of the account of Mr. Marston; that the goods there 
named were all delivered to Mr. Marston, charged to him and the account settled on 
that. 

On cross-examination he said he only kne^ by the books ; could not tell whether 
the bills shown had been paid, or not, except by the books. 

Q. Was there a reduction made on any single article of the eight bills produced? A. 
Not to my knowledge. 

TESTIMONY OF JAMES HAY. 

James Hay sworn. Examined by defendant's counsel : 

Q". You are the gentleman named in connection with the Mariposa matter? A. Yes, 
sir. 

Q. There was a sum of 5,000 shares of stock which were purchased by General 
Fremont at $25 a share, as stated by him. Do you remember that fact ? A. Yes, sir, 
that was so ; I think it was about October, 1863. 

Q. Thatwas a portion of the lot of 25,000 shares that had been in the hands of Mr. 
Ketchum? A. Yes, sir. 

Q. Who made payment for that 5,000 shares ? A. I did ; I conducted the transaction. 

Q. Who becam^e owners of the 5,000 shares, and who contributed towards the pay- 
ment ? 

Objected to. Defendant proposes to connect Mr. Opdyke with it. Allowed. 

A. Mr. Ketchum paid me for one-third of it and Mr. Opdyke for one-third. 

TESTIMONY OP CHARLES H. WARD. 

Chaeles H. Ward sworn. Examined by defendant's counsel — I am a stock-broker 
and banker, of the firm of Ward & Co., No. 54 Wall street ; I know the Mariposa stock ; 
in 1863, the price of that stock in the market varied backward and forward from about 
45 to 55 ; sales were made almost daily during the month — not in the stock-Board, but 
in general sales.'- 

Cross-examined—I have sold a great deal of it; I am related by marriage toMr. 
Billings, one of the proprietors, and in the formation of the estate held his power of at- 



u 

torney, and participated in the arrangement with his brother 0. C. Billings ; I think the 
stock was sold in the Board about the middle of October ; previous to that it was sold 
in the street — not on the regular call of the Board, but was dealt in. 

Q. What would be the effect on the market of throwing 25,000 shares on it? A. It 
would have knocked the stock very low — can't say how low — very close to 20 per cent. I 
think ; the effect of putting a large quantity of any particular stock on the market is to 
depress it almost immediately very much ; I think to have thrown 25,000 shares of Mari- 
posa on the market would have depressed it 20 per cent. 

MAJOR ROBERT TAYLOR INTRODUCED. 

Major Robekt Tayloe was introduced, and counsel for defendant proposed to prove 
that in his case there was a totally different mode in which his claim against the city for 
loss of arms was tried from that of Mr. Opdyke's ; that he presented a claim, and it was 
presented to the same party (Mr. Blunt); that witnesses were examined and cross-ex- 
amined upon it ; the claim was cut down, and to this hour is unsettled. 

The Court ruled out the testimony as irrelevant. 

Counsel for defendant here rested, reserving the right to examine Mr. Reading, a 
member of the Committee appointed by the Supervisors' Committee to examine into 



claims. 



PLAINTIFF'S CASE IN REBUTTAL. 

TESTIMONY OP WILLIAM W. MARSTON. 



William W. Mabston sworn ana examined by plaintiff's counsel— My business is 
manufacturing arms ; the paper produced is a bill of sale of the property, executed by 
me to George W. Farlee, dated December 1, 1862 ; it includes machinery, fixtures, tools, 
&c.; the Inventory mentioned in the bill of sale was taken by parties chosen by Mr. 
Farlee and myself, William L. Colby of the firm of Hoey & Co., and Mr. Charles Knowl- 
ton, who was previously connected with the factory ; Iliad been conducting the business 
of the factory up to that time ; I do not know what has become of the book called 
Schedule B. 

[George W. Farlee was called to prove the loss of Schedule B. at time of the fire.] 

Witness continued: This book produced is a copy of the original Inventory, Sched- 
ule B ; it was written by my son, and I believe I called off the items from Schedule B ; I 
know it to be correct ; the machinery mentioned in the Inventory was in the factory at 
the time I sold it ; I was present a good portion of the time the Inventory was taken ; I 
think the total amount — the whole — was sold for something like $90,000, or for $91,000 ; 
that included all that was paid ; there were debts and different things to be paid ; to 
assist the appraisers in making the Inventory they had the original bills and access to 
the books and everything ; there must have been four hundred feet of shafting altoge- 
ther—four lengths ; two lengths were purchased from the Stover Machine Company ; 
Carpenter & Plass made one length and -part of another, and I think the rest was made 
in the factory. The bills for the shafting was exhibited to the appraisers ; there were 
pullies and anchors that were included in the bill of shafting. The stocking machinery 
in the stocking-room was made in the factory. Mr. Stover offered to make some of it. 
First I applied to Stover to make a portion of the machinery, and I think he said he 
would make it for $1,700, and have it completed in five weeks ; at the end of that time I 
called and he had not commenced it ; a week or two after he said he had given it to a 
man in Newark ; I looked at it and did not like it ; he then said it would cost $7,000: I 
told him that differed from what he said before ; he then proposed to do it and charge 
by day's work ; I concluded to make it myself. 

Q. What was the value of that stocking machinery in your judgment ? A.I think it 
was fully worth what I sold it for, any how ; this was a special arm, and requii-ed 
special machinery ; I was not able to get it ; there never was machinery made to make 
a similar stock to that before. 

Q. Do you understand a different thing by tools in a gun factory from tools in a gun 
shop ? A. Certainly ; we have tools in a factory for making machinery, and have gun 
tools, too ; we got 15 or 16 lathes of Stover ; there were additions put upon the lathes 
after they were purchased, which would make a difference in their value ; I think that 
machinery was put in the Inventory at the price that I paid Stover ; I have no doubt 
about it ; the eight bills produced from the Stover Machine Company were paid with- 
out the deduction of one cent ; these bills were sent with the machinery ; the receipts 
were taken in a book ; milling machines are those on which the parts are cut out to the 
shape required ; they are of different prices, some small ones $100, some index machines 
as high as $550, and higher ; the prices Mr. Stover gave did not include carting or set- 
ting up, but only the price of the article in his shop ; I did not buy any spin >led drills 
from Mr. Stover except one ; the anvils were not bought of him ; I think I paid 9 or 
10 cents for the cast iron, and 16 or 18 for the wrought iron. 

Q. Do you know what it cost to put up and adjust the counter shafting for the 66 



^ (J 



15 

macliines put down here? A. I am satisfied it cost more than is charged, which I be- 
lieve is $1,400 ; the machinery was in good condition when I sold it on December 1,1862 ; 
if anything, it was in better condition than when I bought it, for after running machinery 
for a while it takes less power to drive it, and it does not heat up so quick ; I think for 
use in the factory it was worth somewhat more than ^hen new on that account, and 
somewhat more on account of the increase in price. 

Q. Do you know the condition of it at the time of its destruction? A. Not positively ; 
I was not in the factory for three or four months before it was burned up ; the machin- 
ery seemed then to be in about as good condition as when I sold it ; I know it was in 
good condition any new machinery, which certainly could not have been run any but 
what would improve it, from the time I was in there ; when I was in there last, I ob- 
served everything going on systematically and in good order ; Mr. Stover was not at the 
factory very often ; I do not think he was there more than a dozen times ; he might 
have been there twenty times. 

Q. How much did Mr. Stover examine the machinery when he came there? A. He 
used to walk about ; I can't tell how much he examined it. 

At this point the Court adjourned to 10 o'clock to-morrow. 



NINTH DAY. 

FRIDAY, DECEMBER 23d, 1 864. 

TESTIMONY OF WILLIAM W. MARSTON, CONTINUED. 

William W. Makston— Examination resumed by plaintiffs counsel. I have seen the 
inventory which was presented to the city ; a portion of that consists of tools, fixtures, 
and machinery, $67,000 ; that refers to the purchase from me ; I have compared that In- 
ventory with the Inventory made by Messrs. Colby and Knowlton, at the time of my 
sale to Farlee ; I see one or two errors in it, or differences ; in the former 4 punches 
are mentioned ; in my Inventory three, making a difference of $30 ; in the Inventory to 
the city there is an omission of a mill mandril for tip, $40 ; and two sets of jnws, $65, 
which are in ray Inventory ; I find in the Inventory to the city one lathe at $325 ; that 
was a lathe agreed to be delivered to me, and I claimed it as my property, and got the 
money for it from the city myself. 

Q. It was inserted in Mr- Farlee's claim through a mistake ? A. I do not know how 
it was inserted there ; I explained it to Mr. LJlunt, and Mr. Farlee also explained it. 

Q. How were the tools, fixtures, and machinery, examined by the appraisers ? 
A. According to their judgment, with the examination of the books ; they had every 
facility. 

Q. Were they worth the price at which they were valued in the Inventory? A. I 
think they were, and more, too ; I thought at the time they were worth more, and tliat 
I lost money ; the total amount of the sale by me was $92,135 34 ; that included some 
stock on hand, tools, machinery and fixtures, rent and coal, and also $16,984 62, debts 
that were due on stock and machinery ; I have not looked at the Inventory sufficiently 
to state how much was for machinery, how much for tools, &c., separately. 

[The witness retired to make a calculation as to how much of the $20,000 was for 
machineiy, how much for tools, &c.] 

TESTIMOISTY OF WILLIAM J. COLBY. 

William J. Colby, sworn and examined by plaintiff's counsel. I am a member of 
the firm of R. Hoe & Co., Machinists ; we have establishments here, in Boston and Lou: 
don ; we manufacture the power printing presses ; have been engaged in the business 
of machinery twenty-five years or more \ we have made a few gun tools; Mr- Knowlton 
and 1 made the appraisal between Marston and Farlee on the machinery and tools in the 
armory; it took us about six days; thalrwas in November, 1862; we commenced with 
the machinery ; we had access to the books, invoices, and the main part of the ma- 
chinery was made up from these ; we afterward commence I with the small tools spoken 
of in the Inventory ; they Avere laid out in parcels ; I valued one article, and Mr. Knowl- 
ton the next in rotation; sometimes we differed as to the value, and then we compro- 
mised ; we made up the prices of the tools according to our knowledge, not from bills ; 
we put down the cost on the principal machines at the cost in the bills ; the Inventory 
was made up in duplicate— one delivered to Marston and one to Farlee ; the tools in a 
gun factory differ from ordinary machinery quite considerably. 

Q. Was there, or not, an advance on machinery from 1861 to 1863 ? A. IwiU say there 



T6 

was an advance in the machinery of twenty per cent., from the time we made the Inven- 
tory (Dec, 1862) up to the time of the fire (July, 1863). 

Q. Is machinery that has been in use from four to six months hetter or worse ? A. It 
is better in my opinion ; there is no depreciation at all, but a slight improvement. 

Cross-examined — This last remark applies to running machinery, such as lathes, pla- 
ners, shafting, etc.; it does not apply to cutters and files, or to tools, as distinguished 
from machinery. ^ 

Q. After machines have been used from four to six months, how is it with the next 
four or six months? A. After that there is a slight depreciation; how much depends 
on the care taken of the machinery. 

Q. How is machinery affected by its use for six months or a year, in respect to its 
marketable value, for sale to the general purchaser? A. Probably, in that light, it would 
be twenty or twenty-five per cent, depreciated ; I never made guns ; we made some gun 
tools in 1861 or 1862. 

Q. Did you do anything else in putting a price upon machinery (as distinguished 
from the tools), except to take the prices that had been paid for it? A. Nothing else ; 
we had no bills for the tools ; I put a price upon them that I thought it would cost to 
make them ; I had nothing to do with the part of the schedule that comes under the 
head of accounts; I had nothing to do with valuing the stock on hand; it was only on 
machinery, tools, and fixtures ; Mr. Knowlton and I examined the stocking room; we 
made out the valuation of the machinery, etc., there from our own observation ; there 
were no bills to show ; the building and carpenters' work I had nothing to do with; the 
putting up and adjusting counter shafting for sixty-five machines, $1,495, we ma^e up ; 
the machines were put up and taken down again in several instances, and replaced; 
this item of $1,495 included all that ; we got at the matter by estimation as to what it 
had cost ; this taking down and re-adjusting did not add to the value of the machinery, 
but it did to the value of the whole establishment. 

TESTIMONY OP AUGUSTUS WEISMANN. 

Augustus Weismann, sworn. Examined by counsel for plaintiff. In 1863 I was one 
of the Supervisors of New York and a member of the committee on riot claims ; was 
appointed at the first meeting of the committee ; the legal adviser of the Board was 
present ; also the, Mayor and all the members ; Mr. Develin stated that he would not be 
able to be present, but he would send Thomas C. Fields ; Mr. Fields then regularly ap- 
peared at the meetings of the Committee, and commenced the examination in a very 
rigid manner ; the claim of Farlee was referred to Mr. Blunt, he having had a gun fac- 
tory, and having expressed a wish to examine the claim, being better acquainted with 
the articles ; I was not present during the examination by Blunt, on account ol sick- 
ness ; at the time Farlee's claim came before the Committee, we had passed the Wake- 
man claim, and Blunt stated that he was ready to report ; the members were all present, 
I believe ; a conversation took place at the upper end of the table, which I did not dis- 
tinctly understand, but I saw the Mayor rise and state that he considered it improper to 
remain when the claim of Farlee, in which he was interested, was before the Committee 
for consideration, and he left ; I was at the upper end of the table, and that was the rea- 
son I did not distinctly hear ; after the Mayor left, the real discussion about the claim 
commenced ; various propositions were made for the purpose of cutting down the claim, 
as all other claims had been, and it would be improper to omit this when all the others 
had been so sharply and strongly treated ; I favored cutting it down five per cent., or a 
per centage ; Ely made a motion that it should be $199,700, a reduction of about $7,000 ; 
the Comptroller, I think, concurred, and it met the approval of nearly all the members, 
and was passed ; it was subsequently passed by the Board, either unanimously, or with 
ene dissenting voice, which might have been Mr.Purdy's. 

Gross-examined. I had a long conversation with Blunt about the claim and the testi- 
mony ; I asked him particularly how he got along Avith such a large claim ; I also receiv- 
ed information from different workmen, who were examined by Blunt and myself, 
regarding tools which were lost in the factory ; I never examined the bill thoroughly ; 
I looked over it and satisfied myself that it was a matter which I did not under- 
stand. • 

TESTIMONY OF CHARLES D. BIRDSEY. 

Chakles D. Birdsey, sworn. Examined by counsel for plaintiff. In 1863 I was 
employed as one of the examiners of riot claims b}^ the Board of Supervisors ; Reading 
and Lee were the other examiners ; I was present when the claim of Farlee was brought 
before the committee for decision ; I stood at the upper part of the room ; Weismann 
was about the third from me; after the claim of Wakeman had been considered, the 
claim of Farlee came up, andOpdyke remarked that hcthought it was improper for him 
to remain in the room, as he was interested in that claim, and left the room ; I did not 
hear Thomas C. Fields make any suggestion about the Mayor's leaving, nor did I hear 



/■// 



n 



Purdy suggest it ; Purdy expressed himself perfectly satisfied with Blunt's examination 
and recommendation, he being more familiar with the matter than any other could be ; 
Comptroller Brennan started after Opdyke to bring him back ; I stood by Brennan atthe 
time ; just before he left, Opdyke said he did not expect his claim to receive any consid- 
eration different from what other claims had ; that he would expect to see it treated in 
the same manner ; that seemed to be with reference to cutting it down ; I did not hear 
Fields make any protest, and I paid attention to what was said; if he made any, it must 
have been a side remark to one of the committee. 

Me. Evabts stated that the remark of Fields was at another meeting, and not the one 
at which this witness was present. 

The Court said that he had got the impression that it was at this particular meeting 
that Field's testimony referred to. 

Witness — There were several conversations on the committee at several times. 

Cross-examined. — The session when the Farlee claim was passed occupied about an 
hour ; I think I was there from the commencement to the close ; it occupied about half 
an hour after the Mayor went out ; the claim of \Yakeman was acted on first, and that, 
perhaps, gave rise to the Mayor's remark about the treatment of this claim ; Wakeman's 
claim probably suggested it ; the Mayor stated that he requested the claim to be very 
carefully made out, and he did not expect it to be treated with any more consideration 
than others had been; nothing was said up to the time of his leaving about cutting it 
down ; I remained, probably, for the purpose of walking up with Wiesmannn ; it was a 
conversational meeting within the bar near the clerk's table; I was leaning against a 
post, and I think I heL.rd all the public remarks, and some of the private remarks. 

TESTIMONY OF RICHARD A. READING. 

Richard A. Reading, swjorn. Examined b.y counsel for defendant (this is the witness 
that defendant's counsel reserved when they rested): I am a fire underwriter, and have 
been so since 1829 ; I was selected by the Supervisors as one of the fire committee ; after 
the parties were examinel and their witnesses, the claims came to us individually ; my 
geneia,! course was just to bok over the evidence already taken and the claim, and then 
I went to the parties, where tVere were accounts, and demand their books, papers, bills, 
vouchers, and everything necessary to elucidate fce claim; from these I made up an 
estimate of the loss, and compared with the accoiiijt presented, and either allowed or 
reduced it; generally they required reduction ; I examined claims of machinery destroy- 
ed ; Farlee's claim was not referred to us ; I m&^e ng investigation; I looked 
over it. -, 

Gross-examii ■- - • ■^gyeno^r"""^'^"^'"''' tons: one-tenth certainly were ; I have i 

a general knov . . > ■ . - - ^.-_ 

about a year, a 
ularly for gun 
ferred to the t 
which were re- 
Ackerman for - 
a number of cli' 
claims were bj 
were all destroyed. 

TESTIMONY OP ORISON BLUNT. 
Orison Blunt, sworn. Examined by counsel for plaintiif. For the last year I have 
been engaged in filling up the armies of the United States with volunteers and substi- 
tutes for this county ; since 1854 was a member of the Board of Supervisors, with the ex- 
ception of the years 1S65 and 1856 ; I learned the business of manufacturing guns and 
pistols in 1832 ; I continued it until the year 1855, under the firm name of Blunt & Sims ; 
I understood the mode of making guns in every part, and know every machine that is 
used at this day ; I remember this claim ; it came from the Comptroller ; some claims 
were first sent to us ; we sent them to the Comptroller, and then they came back to us 
I never knew Farlee before he presented himself before the committee to testify. Op- 
dyke never spoke to me either directly or indirectly in any way whatever in regard to 
the claim, nor Farlee, nor any other person ever spoke to me on the merits of the 
claim ; when it came up I was desirous that the entire committee should sit and hear it, 
as it was a large and important one ; the committee discussed the matter at considera- 
ble length, and came to the conclusion that after they had heard it they would not 
know much more about it than before, and they said : " You hear it, and report it all 
to us ;" I objected to doing it in that way, but they afterward insisted upon it, and I 
consented to hear it ; it was before me from 9 to 12 days ; Farlee was the first witness, 
Marston the second, and Keene the third; there were many others who testified in other 
cases, and as the committee were satisfied that the building was destroyed with all the 
property from those other witnesses, they did not go into that part of the evidence in 



18 , . 

this case ; there were claims for bench tools destroyed in this armory ; think T exam- 
ined Ackerman at very great length on the destruction of the building ia his own 
case. 

Q. Was all that was said by the witnesses written down in this claim? A. Farlee 
was examined at very great length ; what I considered unimportant in the case was not 
put down — only what related directly to the case ; I allowed the witness to tell his own 
story as long as he wished, and then directed the clerk, HutcMngs, to put down such 
parts as applied to the case ; the rest I considered there was no necessity of putting 
down ; he put down just what he was told by me ; this was so in regard to every other 
witness then the testimony was read over to the witness, and he signed and swore to it. 

Q. Was the explanation full ? A. I do not think that there was one-quarter that 
Farlee or Keene said that was put down; I questioned Keene very closely and exten- 
sively to learn whether he had any knowledge of these matters^ and I was satisfied that 
he understood what he was talking about. 

Q. What explanations, if any, were given to you about the value and quality of the 
machinery, tools, and guns? A. The first witness called on that point was Marston ; 
I examined him at very great length on .every item in the bill that was presented that 
the company bought of him, and I was satisfied, from the knowledge I had of the busi- 
ness, that every price that was charged — (Objected to as not responsive. Objection 
sustained). Witness proceeded : Marston showed me just what every item cost, and 
said that he had lost a large amount of money by selling these tools to the company — 
some S20,000 or $30,000, 1 think ; that is, less than they cost him ;, I questioned tim in 
regard to their condition when he sold them, to find out whether any of them were 
spoiled, and whether any of them were injured by being badly us'.d. 

Q. Were the prices fixed such as you judged, from your knowledge , to be proper and 
reasonable? A. There was no item charged in that bill but what I considered a just, 
fair and low price for such articles, at that time. 

Q. State what was your examination of Mr. Keene ? A. I examined Mr. Keene much 
longer than I did Mr. Marston ; I examined him about the entire factory, as he was well 
acquainted with the entire factory, sfitd Mr. Marston was rw't, inasmuch as there were 
other tools put in the factory after Mr. Farlee came an.^ Mr. Marston had sold out; I 
examined Mr. Keene on every item y:at was purchased if Mr. Marston, in order that he 
should tell meithe condition of the tiols at the time thsy were purchased of Mr. Marston, 
—so that I should be satisfied tha^the tools purchased of Mr. Marston, together with 
the machines^ were in good cordition, and not spoiled by inferior workmen ; I was 
satisfied that Mr. Keene understood the business thoroughly, and upon these investiga- 
aons I was sltisfiSd that the prices charged were fair, and that Mr. Keene well under- 
stood them; from the knowledge I had of the biisiness, I was satisfied that the Com- 
mittee had the whole story with regard to the worth and cost. 

Q. State your examination of Mr. Farlee ? A I examined Mr. Farlee very thor- 
oughly, as regar'i.ed the investroA»v &o'. ; he knew Very little with regard to the ma- 
chinery ; It;'xami.°d him T^ry closely on the point of investment. 

• Q. Bid you examine him about his ownership ? A. When Mr. Farlee presented the 
claim to me it was the first time I ever saw him, and I asked him if it was his ; he said 
it was ; I asked him if there was any other claim on the concern, and I named Mr. Op- 
dyke, the Mayor ; he said he did not know of any other claim ; that that was the entire 
claim ; I told him I had been informed that there was $500,000 dollars invested in that 
factory, and this claim was only for $207,000 ; that I had a small claim presented for 
tools ; that if there were any other claims I would like to have them all brought up to- 
gether and examined at the same time ; he said this was tlie only claim, except there . 
might be some claim for small tools by mechanics. 

Q. When you questioned Mr. Farlee about his ownership, did he exhibit to you a 
a bill of sale? A. He showed me a bill of sale from Mr. Marston to him, and that was 
the bill of sale I used before the Committee in order to ascei-tain what the goods cost 
him ; I cannot state whether the paper here produced was the bill of sale ; I made no 
mark upon it. 

Q. Do you remember anything being said at the time about any one else being in- 
terested under him or with him? A. I told him I had understood that Mr. Opdyke 
owned the concern, and he showed me the bill of sale from Mr. Marston ; I stated to 
Mr. Farlee that the object of the Committee was, first, to learn who owned the property 
—the next thing was the property destroyed ; we had already understood, from wit- 
nesses in other cases, that the property was destroyed, and I did not wish to call any 
Witnesses to that point ; I stated to him that I wanted him to show what the property 
was worth. 

Q. Did you at that time know, or had you heard Mr. Opdyke was interested in the 
establishment? A. I had heard more than fifty times that Mr. Opdyke had a large gun- 
factory on the corner of Twenty-second street and Second avenue, and was manufac-, 
tuTing guns for the government. 



//t- 



M 



Q. Look at the last page of the account, and state whether that part of the account 
is, in your judgment, justly and properly made up or not? A. The first item is 500 pa- 
tent Gibb's breech-loading carbines, finished, assembled, and ready to deliver, at $24 7o 
— $12,350; Mr. Keene was examined on that point and was examined at very great length 
and not one-eighth part of his testimony on that point was written down ; I was satis- 
fied his calculation was entirely correct ; I agreed with him. 

Q. Did you go over the calculations as to all these with him? A. Xo, sir ; he stated 
that he had made the calculation, and stated how he made the calculation ; I did not 
go into the calculation with him ; I was satisfied that he understood how to do it just as 
well as myself, and I was satisfied to take his statement under oath; next item of 600, 
finished, ready to assemble, at $22 73 , I examined Mr. Keene as to it ; he went into the 
same calculation, in the same way, and I was satisfied his calculation was entirely cor- 
rect; the next, of 1,000, all machined, filed and stocked, at $21 50 ; I went into an ex- 
amination in regard to it, and found that his calculation was entirely correct ; the same 
as to the next item of 1,000 machined, stocked, and not filed, at $19 Vlh,, and the next 
two items of 1,000 each; on the item of 1,000 carbines, all forged and" inspected, not 
matched, at $13 87; I examined Mr. Keene longer than any other ; I arrived at how he 
made the calculation, and was satisfied that he Avas entirely correct, and that he under, 
stood wliat he was about; I know every stage of the manufacture of gnus, and every 
part of the manufacture, and know how to do evei-y part with my own hands ; after I' 
had taken the evidence dbwn, I was satisfied ; I then called all the committee together ; 
after getting the committee together, I told them I had a very important case now, 
which I wished them to consider carefully and understand it, before they made any re- 
port upon it ; I caused the evidence to be read over; I stated that the evidence which 
relates to the destruction of the factory had been taken in oth^ cases, and we were all 
satisfied the building had been destroyed ; I stated that there had been many things 
said which could not be written down and submitted to the committee ; the case then 
came up to audit the same ; I recommended the committee to audit the bill at the entire 
cost, as every article was worth the amount charged at the time it was lost ; the Comp- 
troller made a motion to reduce, which I opposed. 

Q. Had it been laid over from the time it was first presented to the committee to an- 
other day? A. I forget about that. 

Q. Do you know T hos. C. Fields ? A. I do ; he was sent to assist the committee by 
the Corporation Counsel ; he attended and said he was desirous of doing anything that 
might be required, and the committee assigned Mr. Fields to such duties as they thought 
he could do ; Avhcn he required a furlough the.y always gave it to him. 

Q. Was that pretty often ? A. Not oftener than tlie Committee would assent to ; Mr. 
Fields generally asked me what case he should examine, and, as a general thing, I 
selected the case for him, and I think he did it very well. 

Q. Do you remember, when this case Game up before the committee, his insisting 
that it should be examined by Mr. Whitney, an engineer, and have a further examina- 
tion? A. I never heard Mr. Fields or any man say any such thing ; Mr. Fields said to 
me, before we finally passed the claim, that if I wished anymore testimony or any more 
information on the point, he knew some one who was either a superintendent, or for- 
merly had been, at Springfield ; I stated to Mr. Fields that if the gentleman had been 
ever in this factory, or had any knowledge of this factory, I sliould be pleased to have 
his testimonj'' ; but inasmuch as he knew nothing of this factory I did not see that he 
could give the committee any more information than they had ; that was the only con- 
versation that ever came up. 

Q. Did Mr. Fields object to the action of the committee on this claim ? A. I never 
heard that Mr. Fields objected to the action on this claim or any other claim before the 
committee ; nor do I think he did. 

Q. Did he protest and say it was his duty on behalf of the city to suggest certain 
things in respect to it and that witnesses submitted to be examined on the other side, as 
all the witnesses examined were, with one exception, either agents or employes of Mr. 
Farlee?_ A. I have no knowledge of Mr. Fields, or any other person, making any such 
suggestion to me, or to the committee, or that I ever heard of it before. 

Q. How happened Mayor Opdyke to be present when this claim was called up ? A. 
At the appointment of the committee Mr. Purdy moved that the Mayor and Comptroller 
should be adde^tothe committee ; I opposed that, as they were not a part of the Board of 
Supervisors ; the motion was withdrawn, and, after the committee organized, a resolu- 
tion was passed inviting the Mayor and Comptroller to be present, in order that they 
should understand the evidence, and understand every case, as the Mayor had the power 
of vetoing and the Comptroller had power to audit it, after the Board of Supervisors 
passed the claim ; I sent for the Mayor on this particular occasion, under the direction ; 
of Mr. Purdy ; I sent for him three times on this occasion before he came ; when he 
came up, Mr. Opdyke said he was interested in it, and would not stay, and hewithdrew 
immediately ; he was not two minutes about it ; I think he said he should withdraw, and 



80 

to treat this claim as we (Jlid all others ; after he withdrew the claim was considered, 
after a great deal of discussion • Comptroller Brennan made a motion to reduce it ; I 
opposed it ; I said it was fair and just as it was, and ought not to be reduced one dollar ; 
and that was my course on every claim ; if it was unfair I was ready to reduce it to the 
last cent ; it was finally reduced ; Mr. Puidy opposed reducing it, and spoke at consider- 
able length ; he said that if they reduced the claims he could not sign the report. 
Q. Are you acquainted with the value of machinery ? A. I am with some. 
Q. Was there any increase in the price of machinery from December 1, 1862, to July 
13, 1863? A. My impression is there was a very large increase on all kinds of machinery 
during that time ; I did not buy a steam engine during tha,t time, but in consequence of 
the increased price of iron and scarcity of labor, I am perfectly satisfied the cost of mak- 
ing and setting up was increased. 

Q. Do you know whether there was a great demand for fire-arms during that time ?, 
A. I know therejwas, and the supply was very small ; I bought a milling machine at $140, 
which I sold some months after for $160 ; being in the business, and wanting to buy mil- 
ling machines, I learned that they had advanced very much. 

"Cross-examined—The paper produced is the claim of Ackerman for carpenter's ^i 
tools; I don't think there was any witness examined but himself ; I ceased to be a gun-' 
maker and dealer of guns in 1855 ; since 1856 I have been in the public service ; Iran 
for Mayor in the fall of 1863 ; may have been nominated in October- 

Q. Are you now a member of the bar ? A. (Laughing.) I have not yet received my 
certificate ; I believe I passed an examination and have been reported upon ; the ma- 
chine I spoke of as purchasing at $140 and selling at $160, was one I bought in Newark, 
N- J.; I always bu3' at the lowest market price, for cash ; I sold it to W. J. Sims & Bro., 
my successors ; they stated that they could not get one at the price, and needed it very 
much ; the bargain was satisfactory to me. 

Q. They were in a tight place ? A. No, they were never in a tight place ; I was never 
in a tight place in my life. (Laughter.) 

Q. You know all about guns ? A. I know a great deal about guns. 
C. Do yoii know of any body that knows more about them? A. I think I know as 
much as any man about a gun ; if there is any man that knows more, I don't know him 
to-day. 

Q. Do you remember taking a machine to Washington to show — a sort of field gun, 
that turned a qrank and raked a whole regiment? A. I remember going with a man to 
Washington and taking a rotary gun that would rake a whole line when it was all in 
perfect order ; I exhibited it to the heads of all the various departments : I fired it my- 
self and split it all to pieces while I was doing it, [laughter.] Mr. Lincoln, Mr. Welles, 
and I think twenty others were present. 

Q. Did you split it On purpose ? A. No, sir ; I did not make the gun ; it was made by a 
merchant, who knew nothing about the gun, and he made the parts of cast iron, instead 
of steel ; I told him he ought to have known better than to make a gun to shoot out of 
cast iron, that.was no better than corn-bread, [Laughter.] Whenit was made afterward, 
under my directions, it never split. x 

Q. You had a narrow escape ? A. No, sir, there was no danger ; I would undertake 
to split it every day the same way. 

Q. It was a safe gun? A. No, sir, because it would not do to fire. 
Q. Don't you think a gun that will not hurt any one, even whenit bursts, a safe gun? 
[Laughter.] A. No, sir, it is a very unsafe one if you have the enemy in front of 
you. 

Q. Does the testimony taken down, in your judgment, contain all that was material 
to the claim? A. It does. [Mr. Blunt was inquired of very minutely as to the basis or 
character of the evidence on which he reports favorably in regard to the several claims 
in the Inventory. He stated that on Keene's examination, the whole expense of the 
factory was divided up among the guns, in arriving at the cost. Keene put down the 
material at so much, the labor so much — the capital invested in tools and machinery 
so much— rent, and expenses of all kinds.] 

Q. If the carbines, on that calculation had cost $1,000 a piece, that would have been 
your rule of allowing the claim against the city? A. If the claim came in in that way, 
if I had been satisfied there had been that investment niade and that loss, I would have 
allowed it. 

Q. You mean to say that the way these special prices were distributed to each class 
of guns was this — that the cost of the investment was appropriated to each lot, and di- 
vided among the number of that lot ? A. Together with the expense of the factory — 
every cost connected with the factory on this first lot of guns ; that was the way it was 
arrived at ; the tariff paid the patentee was also considered ; I was surprised the claim 
was so small, because the factoi-y was represented to be so large. 

Q. When this claim was passing through the Committee, did any one tell you the way 
it was arrived at was this ; that they took the cost to make the carbine ready to deliver. 



81 

as fixed by the price the Government were to pay ; then they took the incomplete car- 
bine, counted how much additional labor it would take to make them complete, and' 
deducted that from the full price ? A. I have no recollection of any such statement hav-! 
ing been made by any one before the Committee ; neither do I think any such statement! 
ever was made by any one. 

Q. Did you understand that on Mr. Farlee's presentation of his claim, so far as it 
included what had come from Mr. Marston, it was a mere copy of the Inventory of 
prices at which he had bought from Marston? A. I do not recollect anything of that 
kind ; I am under the impression that Mr. Marston stated that although his bill amounted 
to over $80,000 or $90,000 he was willing to take a certain amount for that — I think 
something like $67,000 — and the difference was what Mr. Marston stated he had lost. , ^ 

Q. This item of 29 tool hands for 72 weeks, $17,864— what evidence had yon that thaV 
$17,864 had been burned up in this factory? A. Mr. Keene stated that they had a large 
number of men employed in making tools, adjusting machines, &c., for the purpose of 
making that gun ; upon his statement I was satisfied that he had, and from the know- 
ledge I had of the business of making these tools. 

Q. Did you observe that, in this settlement for machinery, the city was paying for 
every machine and for every tool in this concern, bought of Marston, at the full price 
the machines and tools were charged at on the 1st December, 1862? A. I was aware 
that the items charged in this schedule were entirely correct ; I asked both Marston and 
Keene if all the tools that had been broken were kept up, and they stated they were all 
kept up and in just as good conditio'n as when purchased. 

Q. The $67,000 covered tools on the notion that they had been kept rip as good as 
when purchased ? A. Yes. 

Q. Look at the $17,000 item for tool hands, and see if that was not the wages of 
keeping up these tools as good as when they were bought? A. Some of it might have 
been— how much I don't know ; I considered this a large item, and investigated it to my 
entire satisfaction. 

Q. Take the item of partitions, closets, desks, drawers, etc.? A. The first item is for 
lumber ; I was surprised at so much lumber, and asked if he had it on hand ; I am cei*- 
tain I asked him on that particular po'int, and asked what th^y were doing with so much 
lumber ; he said they had the lumber there, and I was satisfied. 

Q. See if that item does not read, '• lumber for the above, $463" — so that it could 
not be lumber on hand ? A. Yes, that lumber must have been used up ; but there was 
an item of lumber on hand. (Examined the list.) I do not see the item of lumber on 
hand. 

Q. Were any witnesses examined except such as the claimant brought? A. None 
to this point except Keene, the claimant's foreman. 

Q. Who acted as counsel on the part of the city ? A. I heard the evidence and sub- 
mitted it to the committee ; that was the case with nearly all other claims ; there were 
witnesses on prior claims who testified to the destruction of this building ; the commit- 
tee had to be satisfied of that; I did not know whether the witnesses were interested, I 
did not ask that question of any one ; the committee relied upon me and the statements 
of the witnesses just as they made them ; the testimony was all read by the clerk before 
the committee in session on the day they passed upon the claim; the schedule was looked 
at by each member, but the items were not read through ; I think it took nearly all the 
afternoon to read it ; the evidence was always read over before the committee, and lam 
sure it was on this occasion. 

Q. What did Mr. Purdy say? A. He said he considered the claim just and fair, and 
he was opposed to reducing it one cent. 

Q. Did he resign on the day it passed? A. He sent in his resignation on that day, and 
it was laid on the table. 

Q. Did you understand he resigned because the $2,000 was struck off? A. Not in an^ 
way ; he voted on its passage after it was re-coiisidered ; he voted* against it before it 
was re-considered, and he indorsed it ; my recollection is entirely distinct about this. 

Q. What books did Farlee present? A. I asked for all the books, and they said that 
they had been burned ; I think they presented all that had been saved ; the cash book 
showing the outlay I think was presented ; Farlee held it in his hand, and read from it ; I 
was satisfied from his statements ; I do not think I looked into it ; he read it himself, 
and I think he stated that there was his cash amount ; I understood him to testify what 
he had invested from the book, and I was satisfied from the amount invested in regard 
to the cost of the guns. 

Q. When the cash book was produced and the statements aggregated and testified to, 
was anything said about $28,000 having been received back from the(jovernment of the 
United States? A. There was not one cent; I asked him distinctly if there had been 
any money received from the Government, and it was stated that there had not, inas- 
much as there had been no guns delivered — that ^hey were ready to be delivered, but 
had not been receipted for. 
6 



He-direct — [Inventory slio-wn]— Marston presented himself with a book something like 
this; there was an item of lumber $1,476; I asked him what he was doing with all that 
lumber ; the item charged in the bill is $463 ; I knew there was a large amount for lum- 
ber somewhere in the schedule, and this $1,476 is the one I had in my recollection when 
I read it before under the head of lumber; I never read this schedule over since I 
passed the report; I was surprised to find so much lumber, and Marston explained it to 
me to my entire satisfaction; the other lumber is what was worked into closets, draw- 
ers, partitions, &c., after Marston sold out, as appeai-s here ; I never understood that the 
claim was made for any other articles, except for some small tools claimed by workmen 
in the factory; I directed every claim to be advertised in a number of papers of the 
largest circulation, a number of days, on what particular day it would be heard, and I 
think this was so advertised. 

Q. What was the cause of Purdy's resignation ? A. He can tell ; I don't think I ought 
to tell any private conversation here. i , 

Q. Had it anything to do with this gun claim ? A. Not in the least ; it was in refer- 
ence to a loss claimed by a relation of his— a nephew I think. 

Q. How many separate pieces are there in this gun, and how many sets of toQls are 
required for each piece ? At a guess I should say there are 25 or 26 pieces, requiring 
from 4 to 12 tools each; I call the cutting mills tools. 

Q. Are breakage and waste a part of the cost of production? A. So I always under-i 
stood, and I have never come across any one who did not so consider it. 

Q. Accordiag to yOur judgment, would 29 tool hands be required for such a factory 
as this? A. All the fixtures and many of the machines to do certain work are made in 
the factory, by the tool hands, and if all the tools were made in the factory it would 
take a great many more than the number charged to do that work ; it was stated that 
these men were employed as tool hands ; I believed it and allowed accordingly. 

(Q, In what order were these riot claims taken up?. A. The committee first took up 
the small claims, especially of colored people ; after passing some 800 I proposed to 
drop them and take up the large ones ; then between times we examined the small 
claims ; some we disposed of in five minutes ; we heard some days as many as forty ; I 
would hear a man's statement for loss of time about three minutes, let him swear to it, 
and there was an end to it ; we did not allow such claims. 

Q. What is the cost of getting up an establishment to manufacture such carbines at 
the rate of fifty a day ? A. $300,000 or $400,000 would be a moderate investment at this 
time; I consider the enterprise as a very hazardous one, and if I had an order for 
10,000 only for military service I would not go into it any how; it would be impossible 
to make any money by it with no further orders. 

Me-cross-examinedr—lt my factory was burned while turning out the second thousand, 
I should calculate to get every cent I put in, but I would not start with an order for ten. 
nor twenty, nor 50,000 ; I would have expected an Insurance Company to pay every 
cent I put into it ; I should expect to lose very heavily at the end of an order for 
10,000 ; probably nearer 90 per cent, than of 75 of the first cost would have been sunk ; 
there were plenty of claims for labor lost in consequence of being thrown out of em- 
ployment, whch I would hear and reject in the time I am telling you ; there were claims 
also where men were looking on and were knocked down and robbed of their watches ; 
we did not think the laborers had lost anything when nothing was burned up ; I think 
the most urgent claim was that of a boarding-house keeper, and she was shown to have 
been rich ; breakage and waste make up the cost of putting the articles in the market ; 
articles fetch more or less than the cost ; I have bought United States muskets often for 
60 cents. 

Be-direct — Q. If you had had a contract for 10,000 carbines, and it was certain that the 
profit would be $20,000, and the factory burned down after 2,000 were made, would you 
think you had indemnity at the price of old iron or of the parts on hand ? A. No, sir ; 
I would not have submitted to it without going through all the courts in the country. 

Q. If you rejected a claim on such grounds would you expect the city to be sued ? 
A. I should. 

Re-cross-examination — Q. Is it a supposable contract to make 10 or 20,000 guns? 
A. At what price ? [Laughter.] 

TESTIMONY OP THOMAS 0. ACTON. 

Thomas C. Acton sworn ; examined by counsel for plaintiff: I am one of the Com- 
missioners of police, and was such in 1863; Mr. Bergen was the other on the 13th of 
Jul}'. About noon an order was issued to concentrate the police at the headquarters in 
Mulberry street, that was after the burning of the buildings in Forty-sixth street, the 
Provost Marshal's ofSce, and the injury to Superintendent Kennedy ; the Mayor had no 
power over the police. 

Gross-examined — I gave orders to send assistance to all places where there were 
arms or ammunition ; the authority of the Mayor to order out the military was well 



understood; we had the same power; Opdyke's house wasia Fifth avenue, and we sent 
a force to protect that, and kept it there several days. 

Re-direet — I understood the Mayor made a requisition for the military force ; we 
made a requisition on Monday about noon on General Sandfbrd ; General Harvey Brown 
first brought tliree companies of United States Regulars ; I did not see General Sand- 
ford's troops till Thursday ; they were under my orders when the Governor gave orders 
to tliat eifect ; the Seventh Regiment was coming home and was under General Sand- 
ford's orders. 

TESTIMONY OF WM. W. MARSTON CONTINUED. 

Wm. W. Marston — Direct examination resumed by counsel for plaintiff. — I have 
looked over the items in the sale for $92,000, and I find that S62,675.91 were for machi- 
nery and tools ; $4,386.52 for work on the twenty-five model guns, for lumber, hardware, 
curtains, buildings, carpenter-work, and blacksmith shop (this I did not and do not now 
count among machinery and tools; $20,206.04 for stock (that does not appear in the 
printed claim) ; then the note of Brooks which I made over was $2,168 ; then for rent, 
gas, insurance, and coal, $2,618.65 (this was reduced); the whole amount making 
$92,135.02, as I have figured it up. 

Cross-examined — The stock is mixed up in the account ; it was estimated at the price 
I sold it at; I am satisfied it cost no more ; the stock I could get at, the machinery and 
tools were consumed; the appraisers put their valuation on the tools; a good part of 
which I made ; others that I bought were put in at the price paid for ; the 5,000 gun 
stocks, at 1.3 cents each, were in the factory when I sold out; there were gun barrels 
there that do not appear in the account; the amount paid to the makers was put down 
(it was stated approximately amounting to $3,375), the item of work charged on 25 
guns, $2,500 came in this way ; there had been a great deal of time consumed in getting 
the tools read^^ and the time for delivery had passed; Farlee was urgent that someguna 
should be made for delivery ; I told him if it was necessary to go out of the general 
routine, it would put things back very much and cost a great deal ; Opdyke said it made 
no difference what it cost, everything else must stop for that ; the foreman considered 
that they cost that much in consequence of the delay, and I have no doubt they did ; 
they were not finished,, though much more was not re t[iired about them ; I question 
whether they could have been delivered to the Government under the contract; the ma- 
terial was good, and I think they were perfectly safe to shoot wit'' : tVey would have 
been serviceable if they had been properly put together, but they weic fussed about a 
good deal. 

Q. What did you get your pay in for the establishment? A. Opdyke had advanced 
to me $67,699.58 ; interest $1,576.43; then I had from McNeil $2,500; then a note of 
McNeil, which Opdyke discounted or paid, $2,000 ; then my indebtedness was $16,948.62 ; 
all that made $90,720.63, which was the payment I got ; I was a debtor for all that mo- 
ney, except the $2,000. 

Q. What was the condition of the business as respects its value in regard to the mo- 
ney piit into it? (Objected to — objection overruled). A. I considered that the full 
value was there. ' 

Q. What was the profit expected on the manufacture of the 10,000 guns ? (Objected 
to — objection overruled). A. If there had been no more there would have been a 
great loss ; I think the equipment was pretty much complete. 

Q. On the 1st of December, 1862, what number of tool hands would be required up 
to July to keep up the equipment and tools? (Objected to as new affirmative evidence 
— objection sustained— exception taken.) 

Adjourned till Tuesday, December 27, at 10 o'clock. . 



TENTH DAY. 

TUESDAY, DECEMBER 27TH, 1864. 

TESTIMONY OF WILLIAM W. MARSTON CONTINUED. 
Wm. W. Mabston — Cross-examination resumed by counsel for defendant. — The stock- 
ing machinery, patterns, &c., amounting to $9,669, were all made in the establishment; 
there were no invoices of the cost of these ; they would be worth this amount to parties 
continuing the same manufacture ; the first idea in starting the factory, was to have a 
great many of the parts made outside ; we soon departed from that plan ; we found it 
cost six times as much as we had calculated to carry on the concern ; before I sold out, 
Opdyke expressed himself willing to get out of it at five or ten thousand dollars loss ; 
the model, or pattern gun, charged $500 dollars, is a necessary thing ; it ismade by hand, 



84 

and generally costs more than that; it is a standard gun ; Farlee is mistaten in his testi- ■ 
mony that he was charged $3,000 ; the $67,000 in the bill embraces the same articles that 
Farlee states in his testimony, before the committee, cost Mm $76,000. (Counsel for 
plaintiff stated that this was explained by consumption.) 

Be-direct — I made the bargain to sell out with Opdyke, but I sold to Farlee ; I lost 
over $10,000 before I sold out; when I left, we were not turning out any guns — the 
arrangements were not completed. 

Be-cross — I got exactly what the machinery, tools, &c., cost; if I had gone on 
and completed the contract, without any further jobs, I should have lost something. 

TESTIMONY OF JOHN CAMERON. 

JOHN Camekon, sworn : Examined by counsel for plaintiff. I am Captain of the 
police ; I comniatided in the Eighteenth Precinct in July, 18G3 ; I sent men to protect 
this armory ; gentlemen from the armory came and requested me to send policemen ; I 
did so ; about noon, workmen from other factories complained that they were not pro- 
tected ; I advised the foreman of this factory to dismiss his men and shut up the facto- 
ry ; I sent to headquarters for more aid ; at one o'clock a number of men came ; I sent 
them to the factory, but in the afternoon I was informed that it was impossible to hold 
the factory; I sent men in disguise to order the men to get out of the factory, and they 
did withdraw in the rear ; I telegraphed to the central office that it was impossible to 
hold the factory, and Inspector Carpenter telegi-aphed back to withdraw the men ; and 
neither Opdyke nor any other one connected with the factory requested such ivith- 
drawal. 

Cross-examined — I judged that it was impossible to hold the factory from the num- 
ber of the crowd ; Sergeant Benedict sent me that word ; Jones told me he could hold 
it by arming the police, but I saw the mob could get on thereof; the factory was burned 
about 4J o'clock, soon after the men were withdrawn. 

TESTIMONY OP CORNS. BURDICK. 

Corns. Burdick, sworn : Examined by Counsel for plaintiff. — I am Captain of the po- 
lice ; in 1863 I was sergeant, and had command of the Broadway squad on the 13th of 
Jnly; I was ordered to the Eighteenth Precinct at 12 o'clock by Inspector Carpenter, 
to report to Capt. Cameron, with 30 men; Capt. Cameron ordered us to the armory; 
tho mob came; we armed ourselves with carbines, they attacked, we fired, and I under- 
stand a man was killed ; after some time Sergeant Buckman brought a communication 
from Capt. Cameron to withdraw ; he came in disguise ; we withdrew at the rear, going 
through a very small hole ; at that time it would have been instant death, in my opinion, 
to have attempted to get away in front ; I went and reported to Capt. Cameron, and then 
went to my station in Mulberry street. 

Gross-examined We were there about half an hour before the attack was made ; we 

had twenty-four rounds of ammunition ; we protected ourselves by firing ; the firing 
stunned the mob, but they soon rallied in greater force; we were there four or five hours; 
the mob took the doors and every window below ; they did not enter the first floor ; I 
don't know whether they entered the basement-; I think we fired but one volley ; there 
might have been some other shots fired ; I seat word to Capt. Cameron that I could not 
hold the armory without reinforcements, and he sent back word to withdraw, as he could 
not get assistance then. 

TESTIMONY OF FRANCIS J. BANFIELD. ^ 

Francis J. Banfield, sworn : Examined by counsel for plaintiff. I was sergeant of 
police in July, 1863 ; I went in citizens' clothes and mingled with the rioters before this 
armory ; I learned that they determined to make the men quit work, as this was the only 
establishment in the neighborhood where the men were at work; I went and so reported 
to the Captain ; he ordered me to notify the parties in charge that thej'had better knock 
off the workmen ; the foreman said he could hold the building ; finally they knocked off; 
I should think there were three thousand in the mob; the street was blocked up on Sec- 
ond avenue ; I saw two men get up on the liquor store adjoining and reach the roof of 
the factory ; I learned that they intended to fire the place and burn out the policemen 
for shooting their men ; they also threatened the station-house ; I gave that information 
to the Captain ; he thought I had better get the men out ; so Buckman and I went dis- 
guised, and entered by the rear on Twenty-first street; it would have been impossible 
for policemen to show themselves in the street; our men came in bleeding; it would 
have been impossible to save the building ; the men withdrew from the building, one 
at a time, through vacant lots, to the station-house, one every two or three minutes. 
Cross-examined — I was not in the armory when the volley was fired ; the firing exas- 
perated the mob ; we sent out men to take the victims to the hospital ; the first time they 
succeeded ; the second time the mob attacked them ; they were in uniform ; the rioters 
. said they were going to get arms there. 



vi- 



85 

TESTIMONY OF B. E. BUCKMAN. 

Benjamin E. Bctckman, sworn : Examined by counsel for plaintiflF. I wag sergeant 
' of the Eighteenth Precinct in July, 1863 ; about two o'clock I was ordered to repair to 
the Eighteenth Precinct ; I arrived there about three ; word came that the police could 
not hold the armory ; I said I would take the risk of going ; Banfield and I went through 
a private house in citizen's dress ; at first the ladies shut the door on us ; we explained 
who we were ; I got out to the rear, and attracted the attention of sergeant Burdick ; I 
thought he was going to shoot me ; he recognized me, and I told them where they could 
escape ; they went out, one at a time ; there was a solid mob in Second avenue, between 
Twenty-first and Twenty-second streets; some 1,600 or 2,000 passed -our station-house, 
armed with clubs, with a chunk of iron apparently on the end. 

Gross-examined — I did not see the mob enter the armory. 

W. W. MAESTON RECALLED, 

WiiJLiAM W. Mabston, recalled by counsel for defendant. (Rough-turned gun-stock 
submitted.) This is similar to the Gibbs carbine-stock; it costs from six to ten cents 
to turn the stocks as this is ; ours were simply sawed out, those that were charged fifteen 
cents. 

TESTIMONY OF J. L. VOSBURG. 

John L. Vosburg sworn : Examined by counsel for plaintiff. I was sergeant of police, 
Eighteenth Precinct, in July, 1863 ; I was at the Station-house about one or two o'clock ; 
after four o'clock I received an order from tlie central ofSce to withdraw the men ; I think 
it was impossible to hold the armory, judging from what I heard from citizens. 

Mr. Field moved for an instant commission to examine the Secretary of the Navy for 
the purpose of producing a copy of the record of a conviction and sentence of Mr. Sto- 
ver, a witness in this cause called by the defendant, by a naval court-martial for a crimi- 
nal offence. The object was to impeach the witness' testimony, 

Mu. EvAKTS objected, that it was a colateral subject. 

The Court allowed the order. 

TESTIMONY OF JAMES MALLETTE. 

James Mallette sworn : Examined by counsel for plaintiff. I was connected with 
the city department of the Evening Post, in July, 1863 ; the paper now shown me i^ the 
New York Herald, of the 14th of July, 1863 . 

Mr. Field offei-ed the paper in evidence for the purpose of showing that it was known 
publicly that Mr. Opdyke was interested in this armory. 

Objected to, and objection overruled. 

Mr. Field read an editorial, stating that the armory was owned by Mr. Opdyke and 
his brother-in-law. The Tribune, of July 15, was identified, in which the armory was 
stated to be Mr. Opdyke's factory. Also the New York Dispatch, of July 1 9, to the 
same effect* The Evening Post, of August 22, was offered, but excluded, 

Q. State whether there was published in the Evening Post an article in which the 
ownership of this claim was stated ? 

■Objected to ; objection overruled ; exception taken, 

Q. Did you ask any information of the plaintiff in regard to the ownership, and if so, 
when? A. I did so, in August or September, 1863. 

Q. What information did he give you for publication? (Objected to ; objection over- 
ruled ; exception taken.) A. He said the claim would amount to something more than 
$200,000, and it would be presented in the name of Farlee, who had conducted the busi- 
ness ; that part of the claim belonged to him, as he had furnished the capital, or a large 
part of it ; he gave me the items ; one article was written by me ; the Evening Post, of 
September 10, containing the items of the claim, was published in consequence of the 
information I received; there was one article published previously containing similar in- 
formation. 

Mr. Field offered the article in evidence. (Objected to; objection overruled.) The 
article stated that the claim of Mr. Farlee was about to be presented to the city, though 
Mr. Opdyke, having furnished the capital, was understood to be concerned in the loss.. 
The amount of the claim was stated to be $207,000. Six thousand carbines had been 
stated to have been taken by the mob, but it would be seen that only one thousand were 
obtained. The machinery and fixtures were stated at $97,000. 

Cross-examined — I either wrote or revised the previous article ; I got the information 
from the Mayor at his office ; I got a papist statement at the office, either from the.Mayor 
or from his son, or from some other person present; I went there because I desired cor- 
rect information, a,nd I supposed he was in a condition to give it ;. there had been many 
Etories ; the material part that I recollect distinctly waf what the Major told me- 



86 

Mr. Emott stated that he had finisheathfeiriterrogaptories for the commissicm to ex- 
amine the Secretary of the Navy. 

Mr. EvARTS said he would put in the cross-interrogatories to-day, but could not do so 
before four o'clock. 

Counsel for plaintiflf wished to get the record by Friday, 

TESTIMONY OP GEORGE W. FARLEB. 

George W. Farlbe, called by counsel for plaintiff.^I am the son-in-law of the plain- 
tifl", and the person to whom this bill of sale was executed, in December, 1862, from 
Marston ; previously I had a contract with Marston to make 10,000 carbines ; the contract 
was obtained June 1, 1862, by Mr. Brooks, of th§ United States Government ; (contract 
read in evidence ; contract between Brooks and Farlee, dated June 25, 1862, also identi- 
fied and read in evidence, for the fulfillment of the aforementioned contract) ; there was 
only one delivery made wUhin the time prescribed, and an extension of the contract was 
procured from the department (extension order proved and read in evidence, allowing 
six months, provided the price of the carbines be reduced from $28 to $25) ; there was 
then a verbal arrangement made between me and Brooks reducing the royalty from 
$6.50 to $3.50. 

Q. State the terms of sale to you by Marston. A. He selected each as an appraisei" ; 
the book now shown contains the appraisment ; the inventory was destroyed ; the 
$92,000 was paid by canceling notes held against Marston, and Mr. Opdyke's cashing a 
note of McNeil and assuming certain indebtedness of Marston ; Opdyke, Mr. McNeil 
and myself became jointly interested ; I took possession and was there every day ; we 
were several months completing the equipment so as to make guns ; there were a large 
number employed in making tools; we probably turned out a few guns in May; not 
until a fevf days before the fire did we turn out fifty a day, which we considered the full 
capacity ; prior to December/Mr. Finch was book-keeper; after December, Mr. Paret 
kept them. 

Q. Did you make any suggestion on the day of the riot that you wanted the armory 
burned ? A. I did not. 

Q. Did you hear Opdyke make any suggestion to the Paliee Department that they 
should leave the armory undefended ? A. 1 did not. 

Q. Did you do anything in the way of defending the armory ; if so, what? A. I had 
been at the armory in tlie morning, and reached the City Hall about twelve o'clock ; 1 
there learned that the mob up town was large and determined, and it occurred to me 
that the armory would be in danger ; I saw the Mayor in consultation with Generals 
Wool and Sandford ; I suggested that our armory was a prominient point of attack, and 

■ as we had 500 arms finished, I asked permission to arm the men ; Opdyke said I could 
do it ; I immediately turned to Gen. Wool, and asked whether he concurred in it ; I 
heard him say he did ; Opdyke turned to me and said: " Hold the citadel, and shoot 
down any one who attacks it ;" directly after that I went up to the armory and entered 

' it; I found some thirty policemen, and learned that word had been sent to stop our 
work; I conversed with Paret about it, and we thought we would continue the work; 
but directly after that, in about fifteen or twenty minutes, I made up my niind it would 
be prudent to stop ; I did so, and gave directions to have the police armed ; I was in- 
formed that we had received that morning a quantity of cartridges ; I remained there 
about an hour; we had had no premeditated attack as yet; I went and mingled with 
the crowd aboiit half an hour ; I moved down to the corner of Twenty-first street and 
Second avenue ; while there, the mob, which heretofore was in squads of 25 to 100 or 

■ more, became a dense mass, and they moved toward the upper part of the armory ; I 
saw a man striking the panel of the door, and heard the discharge of a carbine ; the 
mob then swayed back ; in three or four minutes two men came up and assisted a man 
across the street ; directly afterward they went and picked up another on the platform ; 
he was concealed from my view by a fence ; I sauntered along with the crowd ; after 
this shot was fired, I would not have attempted to enter the building ; before that I had 
intended to enter it ; finding I could do no good there, I went down to the Mayor's office 
and reported to the Mayor the facts, but said that there was a large police force there, 
and no doubt they would hold the building ; the Mayor left, and I remained to hear 
anything further, feeling that that would be a point to which information would naturally 
come ; about a quarter past four o'clock Loren Jones came in and said that the police- 
men had been withdrawn ; presently I met Mr. Paret, who said, " It is all up." 

Q. How was Loren Jones employed by you? A. He did simple errands; we would 
give him $50 at a time to buy small articles ; he had no interest in the factory except a 
contingent one under McNeil, as I understood ; he was not superintendent. 

Q. How many carbines had then been delivered to the government? A. One thou- 
sand and fifty-two were delivered and paid for— 550 at $28, and the rest at $24.80 — ^in 
June ; two were models ; on the 13th of July there were 500 ready to deliver ; I knew 
them to be inspected. f 



8T 

Q, Wlio directed the sale of the debris? A. It was made under my direction ; Paret 
took charge of it ; I understood it was at the Comptroller's suggestion. 

Q. Was there a suit commenced against the city? A. There was, and this claim was 
Bent to the Comptroller besides. 

Q. How did you make up the claim? A. The first part consisted of machinery, tools, 
fixtures and articles on hand, which appeared in Marston's inventory, but wliich did not 
enter into the composition of the guns ; it amounted to $67,093 ; the charges for ma- 
chinery were taken from charges in the cash-book ; the charge of $17,000 for tool hands 
is a matter I had no knowledge of; it was made up by Paret and Keene from their recol- 
lection of what the men did ; the lumber was got at from the cash-book ; the hardware 
also ; all our memoranda were destroyed besides the cash-book ; the detailed drawings 
for which we charged $200, Cost us. We believed, $500 ; there was a reduction on some 
articles ; I had always an impression that the model gun wtis charged $3,000, until I got 
Marston's schedule within tlie past three weeks ; I find I was mistaken in my testimony 
in that particular ; I understood from many gun men that a model gun was very expen- 
sive, and had heard it rated at $10,000 or $12,000; the carbines were reduced to $25 
each ; 1 find from Marston's books that more lumber was used than charged for, and the 
same in regard to carpenter work ; all the items in Marston's schedule as per bill or in- 
ventory, I examined myself after the appraisers, and saw the bills, receipts and entries ; 
I verified all those bills; the claim was made up according to my best judgment and be- 
lief at the time. 

Q. Was this an honest account? (Objected to ; objection overruled.) A. I so con- 
sidered and intended it to be. 

Q. You had not any dishonest motive? A. No, sir. 

Q. Do you know of anybody connected with the claim that had any dishonest mo- 
tive? (Objected to. Objection sustained.) 

Q. Did you believe it was an honest way of making up the claim for the finished and 
unfinished carbines, in the way you did ? A. I did so and I do now ; I made it on the 
principle of taking the price at which the gun had been sold for, and deducting there- 
from the cost of finishing. 

Q. During the making up of the claim, did you have any conference withMr. Opdyke, 
and if so, what was said? A. On two occasions we conferred quite at' length, (Ob- 
jected to— objection overruled.) Mr. Opdj'ke said we should be exceedingly cautious, 
and get it below rather than above the actual cost. 

Q. State now about the evidence given before the Board of Supervisors? A. I first 
took the stand, and when we came to the guns, I said to Mr. Blunt that the claim repre- 
sented the Government price less what it cost to finish the guns ; Mr. Blunt said the cost 
was what he wanted to get at; the testimony was not all taken down by any means; 
I never used the words " I am the entire owner of the claim ; " what I did say wasTe- 
sponsive to the question of Mr. Blunt, if I was the owner of the claim ; I said yes ; he 
then asked me whether there were not other parties in interest; in reply to that I pre- 
sented my bill of sale, and said the business had been done in my name, and the con- 
t"acts had been made by me ; and I believed that sufficient evidence of my title ; and it 
was not pertinent to inquire into special interests that other parties might have ; he said, 
" That will do ; " I explained to him the cost of the claim ; I knew that our costs and 
liabilities exceeded the amount of our claim, deducting what we had received from the 
Government. 

Q. Have you any means of stating every item of expenditure? A. I have; I have 
here the checks of Mr. Opdyke, or his firm, for that purpose ; also a list of them, some 
200 ; I have an account, made up from the checks and cash book, together with the ad- 
vances to Marston ; about which I hav-e testified; I know it to be correct [Account 
offered in evidence, and admitted subsequent to defendant's objection.] 

Profit and Loss Account of Armory, as it appeared when claim was presented to the 

Supe7-visors. 

DR. 

To amount advanced W. W; Marston, to Decern b«r 1, 18^... ., $68,129 0'2 

To 117 days' interest to December 1, 1862 1,576 42 

.. .).. :.. .. $69,705 44 
To other amounts advanced by Mr. Opdyke for armory; to July.13, 1863,-yj-iiro t>rh r- ' ' 

including, also, several small payments from that date up to Aug. 14,. r' *^.,{ f.n(y ,' , , 

1863 , ., ,.......; '',;"; 128,36861 

To interest on the above amounts, fhom December 1, 1862, to October 28, ' '. 

1863, averaging 252 days ; 9,705(12 

To amount advanced by McNeil .................... $6^25000- 

Tointerest on same to October 28, 1863. i.... 1,035 93 

- — • i 7,285 93 

Carriea forward.............. ••>.>g<«<.i)«i£i&ji^t. $^15,065 60 



■■5-N 



Brotight forward ^hi».*»viv',- $215,065 60 

• Add liabilities, viz : 
E. Remington and Sons' claim, subject to adjustment, and subsequently 

settled at $4,492.90 5,142 61 

Oaim of patentees for tariff on royalty, amounting to $26,332.00, on which 

$11,308.54 had been paid, subject to adjustment, and sabsequently 

settled at $5,000 15,023 46 

Balance due on McNeil's note to Marston... .."... 1,100 00 

Bill of steel. New York Steel Company 100 00 

Unadjusted liability on contract with E. Remington & Sons, for barrels, 

and with P. B. Tyler for cones, subsequently waived 

Total $236,431 73 

..-■I ' CR. 

■ ;.. 1863 — By receipts from all sources, viz : 

J\ihe 30— By cash from United States Government, on first delivery of 

carbines $15,379 50 

June 30— By 120 days' interest on same to October 28, 1863. 358 84 

Sept. 11 — By Cj sh from United States Government, on second delivery of 

carbines..^'' 12,615 75 

Sept. 11— By 47-.'5ays' interest on same to October 28, 1863 115 29 

-/-.J' 28,469 38 

. fi J.t 

■.. JniofjIifJfal...,-.. $207,962 35 

Mem. — McNiePs advances, together with the estimated profits, were paid to Hender- 
son, assignee, on the 28th of Novembet, 1864, amo.unting to $11,252.35. 

Profit and Loss Account of Armory as it was finally closed. 
DR. 
ToamountadvancedW. W-Marston by Mr. Opdyke,to December 1, 1862. . $68,129 02 
One hundred and seventeen days' Interest, to December 1 , 1862 1,576 42 

$69,705 4* 

Other amounts advanced by Mr. Opdyke for armory, to July 13,1863, in- 
cluding also several small payments from that date ip to August 14, 

1863 128,368 61 

Interest on the above amounts from December 1, 1862, to October 28, 1863, 

averaging 252 days 9,705 62 

Amounts advanced by Mr. McNiel , $6,250 00 

Interest on the S9.me to October 28, 1863 1,035 93 

I 7,285 93 

And liabilities as subsequently settled, viz. : 

E. Remington & Sons' claim of $5,142.67. Subsequently settled at 4,48290 

Claims of patentee for balance due for tariff or royalty on carbines, amount- 
ing to $15 ,023.46. Subsequently settled at 5 ,000 00 

Balance due on McNiel's note to Marston — ^paid him w *. . . 1,110 00 

Claim of New York Steel Co. , paid .;. . .-. 100 00 

Amount paid Hendrickson, McNiel's assignee, for estimated gross on the 

, entire enterprise 3,966 42 

229,724 92 

■ CR. ■ "' 

1863.— By receipts from all sources. 

June 30 — Cash from United States Government for first delivery of car- 
bines : ..... $15,379 50 

Jane 30 — One hundred and twenty days' interest on same, to October 28, 

1863. 358 84 

Sept. 11-^Cash from United States Government for second delivery of car- 
bines 12,615 75 

Sept. 11 — Forty -seven days' interest on same, to October 28, 1863 115 29 

Cash from County .' 199,700 00 

228,169 3S 

Total ., , , $1,555 54 

' Mem. — The above amount of net loss does not embrace the large sum lost by the de- 
preciation of the currency while the capital was invested in the armory ; nor does it in- 
,clude the $10,000 lost by Mr. Marston. 

Q. In this account from the debit t'here is deducted the whole amount received from 
the Government? A. Certainly; always deducted in every calculation. 

Q. Was Marston's inventory exhibited to the Supervisors ? A. It was ; Mr. Hutoh- 
ings was there as security ; Mr, Field was in another part of the room examining a case ; 
Messrs. Purdy and Ely were present ; I recollect Mr. Blunt's calling them up to listen 
when Keene was examined concerning the various armories of the United States ; Blunt 
Baid to them: " I would like you to get some idea what it costs to make guns." 



/-/M 



89 

Q. After your claim was paid did you have any interview with Brooks, the patentee? 
if so, state what occurred. (Objected to as haying been ruled out when defendant 
offered the same evidence.) 

Mr. Field stated what he expected to prove in regard to the settlement for the 
royalty. 

The Court considered it of no consequence. 

Mb. Evarts thought it admissible, and the Court allowed it. 

Witness — The first intimation I had about the matter was a note left at my ofiBce, 
from Brooks, stating that he had called two or three times without finding me in, and he 
wished me to call at his office and settle his claim ; I went to his office and wished to 
know what his claim was ; he showed nie a statement claiming $6.50 on 3,500 guns, and 
$3.50 on 6,500 ; I replied that I thought that was a matter for consideration and negotia- 
tion, that our claim had been cut down, and it could certainly be for nothing else but 
guns, because the other matter was perfectly apparent ; and, besides, we really had 
made no money on the contract; if we had, it would be on the guns which we would 
have subsequently delivered, of the 10,000; " Well," he says, "you have got it from 
the Government and the city, and you have got to pay me ; " I left ; two or three days 
after that he came into my ofiBce to know if I was going to do anything fur ler ; I told 
him I thought not on that basis, it was not equitable ; I wanted to do what v as right and 
fair, and asked him if he had not any other proposition ; he said he had no ". ind if we 
would not settle that way he would sue us; I anticipated a law-suit and report ] to Op- 
dyke accordingly ; he then asked me to have a meeting at his house ; I had one £.i! ■ ,:ed 
that evening, and we three were present,; about the same argument was used ; Brooks 
finally consented to take $10,000 ; Opdyke offered $5,000, and we parted at that; about 
a week after that Brooks called at my office, feeling pretty good, and said he watited 
this matter closed up, and said he would take $5000 if I would settle it, and he gave me 
a release. 

Q. How much had you paid the patentee altogether ? A. $16,332, including this 
$5,000. . 

Q. Was this a good carbine, and was it contemplated to go on with the manufacture 
after the fulfillment of this contract with the Government ? (Objected to— objection 
overrulediS Exception taken.) A. We made inquiries in regard to the desirableness of 
this as a gun for the general trade ; I consulted the best authorities I could find — among 
others Jjawrence, who makes the Sharp carbines, and got a very high opinion of it from 
him ; it was our idea, when we bought out Marston, to go on, if we got no further order 
from the Government, and make the gun for the trade ; we also got a contract with 
Brooks to control, it. 

Q. After you bought out Marston, did you buy any milling machine ? A. We did ; 
we bought milling machines to do the same work which costMarston $275, and they'cost 
US $3.15. 

THE DEATH OF MR. NOTES. 

Mb. Field here arose and said that we had arrived at a stage in the day's proceedings 
when it was proper he should mention the death of Wm. Curtis Noyes. (3nly last Thurs- 
day, after tirying a cause in the court above, he came in and listened to this trial. On 
Sunday morning, while dressing, he was struck with paralysis. He was only conscious 
for a few hours, just enough to ask the physician what was the matter with him, and ex- 
pired. After a few further remarks, Mr. Field moved, in token of respect, that the court 
do now adjourn.^ 

Mb. Evarts se'conded the motion, and added a few remarks eulogistic of the deceased 
brother. 

The Court most heartily responded to all that was said, respecting the merits of Mr. 
Noyes, and spoke of a remarkable argument that the counsel had made in the Court of 
Appeals in 1861, on the question of charitable uses, when he (Judge Mason) thought the ■ 
subject had been entirely exhausted on a prior case. Mr. Noyes, said his Honor, be- 
came a great lawyer more by assiduous and indefatigable application, than by any un- 
usual gifts of genius. 

Adjourned till to-morrow at 10 o'clock. 



ELEVENTH DAY. 

WEDNESDAY, DECEMBER 28TH, 1864. 
TESTIMONY OP GEORGE W. FARLEE CONTINUED. 

George W. Farlee. — Direct examination resumed.— Mr. Fa-ret kept the cash book 
produced from 1st February; Mr. French from Ist December to the 1st of February; 



K* ^ 



90 



while it Was in the hands of Mr. French, to the best of my knowledge, it contained pay- 
ments made, by the concern, but did not show the debts vre assumed of Mr. Marston's; 
it did not show the whole amount of money that went into the concern. 

Q. A.t the time of the destruction of the gun factory, did you .receive any, and, if so, 
what notice from Mr. Opdyke, respecting the continuance of his interest in it? A. I spoke 
to him about continuing the business, and he said he would have no more to do with ma- 
nufacturing arms. 

Gross-exammed by defendants counsel. I reside in New Jersey ; have resided there 
about two years ; am now a practising lawyer ; have been admitted about eight years ; 
was a lawyer in New Jersey before I came here as a lawyer ; during that time my prac- 
tice in the profession has been general ; I became connected with Mr. Opdyke's family, 
by marriage, about six years ago ; am Vice-President of Mariposa Mining Company ; I 
put no capital into the concern for the manufacture of these guns, and drew nothing out; 
my compensation was sixty cents a gun, and at the time of the purchase of Mr. Marston, 
I suggested that as more of my time would be required, I wanted an additional interest, 
and Mr. Opdyke suggested that I should have, until a further arrangement, at the rate 
of $2,000 a year salary, besides sixty cents a gun ; I wanted a fixed interest not contin- 
gent on the manufacture of guns ; I received part of the compensation for the destruc- 
tion of these guns — $500 ; the sixty cents a gun I was to have came one-half out of 
McNeil's profits and one-half out of Mr. Opdyke's; Mr. Loren Jones did not put any 
capital into the concern ; he had no compensation directly out of the concern ; I under- 
stood he had fifty cents a gun, coming out of McNeil's share ; I generally made the pur- 
chases for the establishment; Mr. Jones would make some small purchases; we gave 
him ten dollars or so at a time, and he purchased ; I purchased coal of Mr. Lowber ; I 
purchased several milling machines^two of a party in Pine street at S350 a piece ; I 
purchased gun stock of E. S. Wright ; I purchased various other articles of other parties, 
whose names I cannot now recall. 

Q. Did you go to Washington about this contract at any time ? A. I went to Wash- 
ington about another order, previous to this contract, to examine the title of the patent 
in reference to my interest in that contract, and Mr. Opdyke's interest. 

Q. Was that a contract in reference to the manufacture of Gibbs' carbines? A. It 
was. 

Q. Who did you go there with ? (Objected to. Allowed.) A. Charles McNeil. 

Q. How did you become acquainted with him? A. Through Mr. Opdyke's introduc- 
tion ; I do not think I went to Washington at Mr. Opdyke's suggestion ; I went on 
account of ndy own interest in the matter. 

Q. What was your interest in respect to that contract? (Objected to, unless it applied 
to the contract under consideration.) 

Witness — It was not the same contract; my interest was sixty cents a gun in the 
manufacture of 20,000 carbines ; Mr. Opdyke's interest was $1.70 per carbine ; the con- 
tract was for 20,000Gibbs's carbines ; they did not get that contract ; I did not make any 
application for that contract; Mr. Broolcs told me he did not get it. 

Q. When did your connection with this contract that was actually made for Gibbs's 
carbines commence ? A. In New York, after our return from Washington ; this con- 
tract was made in June, 1862 ; my visit to Washington was made in December, 1861. 

Q. Between December and June what was going on in respect to contracts with the 
Government in which you and Mr. Opdyke were concerned? (Objected to as not rela- 
tive to the contract in question. Excluded. Defendant excepts.) 

(Check-book handed witness). When do these checks commence ? 

The first check of Mr. Opdyke's in this concern, is dated December 10, 1861, $25. 50 
to my order, to be paid to Brooks as the representative of the patentee, the next in Jan- 
uary 14, 1862, $12.50. 

For Mr. Marston to my order : 



January 4, 1862 $1,500 00 

December 2, 1861 2,806 06 

March 20, 1862.... 1,000 00 

Aprils, 1862 2,000 00 

April 11. 1862 1,500 00 

April 19, 1862 1,000 00 

April 26, 1862 1,000 00 

May 3, 1862 ; 1,500 00 



May 13. 1862 10,000 00 

May 19, 1862 • 1.500 00 

May 21, 1862 175 00 

May 26, 1862 2,000 00 

Junes, 1862 1,500 00 

June 9, 1862 390 00 

June 11, 1862 1,600 00 



Q. You gave the checks, having connection with this business upon which the claim 
was made against the city ? A. Yes, as representing the purchase money to Mr. Mars- 
ton. 

Q. I perceive they are all between December, the time when you first went to Wash- 
ington, and June, 1862, when you say this contract was made ? A. Yes, sir. 



91 

Q. What concern did they have with the business? A. I do not suppose they had 
any concern, except to get the value of the amount we paid Mr. Marston for the premisea 
we purcl.ased. 

Q. What connection had you with Marston for the period between December and 
June ? A. I had a contract with Marston. 

Q. In which W. Opdyke was interested ? A. Yes, sir ; it was to make 10,000 carbines 
at $17.50. 

Q. What contract with the Government was there ? A. Brooks had a contract with 
the Government for the like number of arms. 

9. Then you and Opdyke were interested in the manufacture of Gibbs's carbines for 
the'Government from December, 1861? A. ¥es, sir; we were not manufacturing. 

Q. And is not that 10,000 carbines the same 10,000 carbines in respect to which this 
claim against the city was used? A. The carbines actually manufactured were under a 
subsequent contract ; the first order was annulled by the Government, as I understood. 

Q. Were not 550 delivered under this first contract, and paid for at the rate of S28 ? 
A. 5fo, sir; some were delivered aad paid for; this was money for money loaned to 
Marston, which was secured on a chattel mortgage on his machinery. 

Q. Was it not a continuous business, as far as your business with Marston was con- 
cerned, until the burning up, from December 13, 1861? A. No, sir. 

Q. Why do tliese checks before June come into the account against the city? A. To 
indicate the amount of the purchase from Mr. Marston; for these checks Mr. Opdyke 
held Marston's notes, and the surrender of these formed our part of the consideration of 
the purchase. 

Q. And what he paid Marston for the purchase enters into the claim against the city ? 
A. In arriving at the value of what the things were worth. 

Q. Take next check? A. June 16, 1862, for S12 50 to Marston ; this and the 
checks following were on the same advances, same footing, and in the same stream 
of business, until we bought out Marston in December, 1862; there was a difference 
in the consideration of advances prior to June ; Mr. Marston wanted further ad- 
vances ; all the advances were for the manufacture of these guns by Marston ; the 
difference after June consisted in the reduced price at which Marston agreed to 
make the guns in consideration of the increased advance ; Mr. Brooks had an 
order of Dec. 13, 1861 ; which was subsequently annulled ; I don't know how long 
it lasted ; in April, 1862, Mr. Brooks asked to have the time extended, which was 
denied, and then the contract of June was made ; that took the place of the other, 
so far as our advances and Marston were concerned, and our interests. 

Q. Was the contract of Dec. 13, 1861, the one in respect to which you went to 
Washington ? A. No, I went to examine the title of the patent in respect to a 
contract for 20,000 guns in Dec. , 1861 ; there was a contract by Brooks from Gov- 
ernment to manufacture 10,000 Gibbs's CHrbines ; subsequently Mr. Opdyke and I 
became interested in that contract ; there was no difference between that contract 
and the one I went on in respect to, except the number of guns. 

Q. Did any money pass-between you or Opdyke and Marston, on the transactions 
of sale ? A. Nothing but this representative of money. 

Q. Nothing but the extinguishmtnt of Marston's debts, either accruing to Op- 
dyke or some one else? A. And a note of McNeil's of S2,000, and an additional 
surrender of Marston's note to McNeil for $2,500. 

Q. Why did you buy Marston out ? A. The fact that our capatalist, Mr. Op- 
dyke, had advanced more money than he intended, and he refused to advance any 
more without being able to control it ; the chattel mortg ige was the only security 
he had for his advances ; I understood Mr. Marston was worth $25,000. 

Q. Was any proposition made by Mr. Opdyke to sell out to Mr. Marston? A. 
It was proposed ; I heard he proposed to sell out, owing to the hazardous nature of 
the business, and his being entirely unacquainted with it, at a loss of $5,000 to 
$10,000 ; he did not offer to sell out to me at that loss ; it was in speaking of the 
general condition of the business ; he said this to me ; the negotiation ended in 
his bu\i:ig Marston out. 

Q What was the book subsequently discovered recovered from the fire, and 
which you'say you have never seen ? A. It was a book which is in the hands of the 
book-keeper, not discovered until after we made out the claim against the city; it 
was left at Mr' Opdyke' s office ; I do not know by whom ; never heard the book 
described ; a suit was brought against the city before the 90 days expired. 

Q. You say that you made a statement to Mr. Blunt as to the principle on which 



92 

the claim was made up ; charging the carbine price and deducting what it would 
cost to finish. Do you find anything of that in the printed testimony ? A. I do 
not ; there may be words connected -with it ; I have not examined closely ; I think 
there is nothing ; it was when I was examined as a witness I explained that to 
Mr, Blunt. 

. Q. Look at your first deposition : ' ' The arms finished and in different stages of 
finish, are charged at the prices they cost the Company to make them in that con- 
dition, taking into consideration the fact that this was the first lot of arms made 
by me, counting the entire cost of manufacture." Did you say that to Mr. Blunt ? 
A. I said that substantially ; I don't recollect the language. 

Q. In your second deposition you say : ' ' The whole amount which I paid Mr. 
Marston for the articles claimed in the schedule, amounting to $67,693 31, was 
$76,437 36— which is $9,344 05 more than the amount I claim." Explain how 
you .paid $9,000 more for those items? A. In the first place I must say that 
that is not a record of what I said, and so I can't explain it ; it is not a fact that I 
paid $9,000 more than the amount stated in there. 

Q. Did you pay any more for those articles ? A. Yes, 25 carbines at $25 — $625 ; 
that is within the $67,000 ; I don't see any other items on that account on which 
there is a reduction. 

Q. Then that $67,000 represents in this claim the price you paid to Marston to 
a dollar and cent, excepting the 25 carbines put down at $625, for which you paid 
$2,500 ? A. Yes, sir. 

Q. You say here that the difference was caused by some articles being charged in 
the inventory at a lower price, and you gave as an example the model gun which 
was charged at $500, although you paid $3,000 for it. Did you make such a 
statement to the committee ? A. I think I did. 

Q. Did you pay $3,000 for the model gun ? A. No, sir, I did not. 

Q. How came you to say so then ? A. I had that in my mind as the amount 
that we had paid for the model gun ; from the discussions which we had as to the 
appraisement as to the value of the model gun, I had the impression that it was set 
down in the inventory at $3,000 ; I had the inventory there, but did not refer to it, 
in regard to that item, because it appeared to be so familiar to my mind ; the in- 
ventory shows it to be $500. 

Q. In your short deposition you say, " There; was a large engine turning lathe 
Hot charged in the schedule, as there was some dispute whether it was sold to Mr. 
Farlee or was still owned by Mr. Marston." By " schedule" there do you mean 
the schedule presented to the Board ? A. Yes, sir ; I did not say that ; it is the 
item of $325 in the schedule, I think ; during the progress of the trial Mr. Marston 
called my attention to that item and said it should not be in our claim ; I went 
and told Mr. Blunt I wanted to be examined about that item, and I told him that 
in consideration of the question of title to that ib should not have been put into 
the schedule. 

Q. Was not this deposition read over to you before you signed it ? A. Yes, sir ; 
it reads, " There was a large engine turning lathe not charged in the schedule ;" 
it should be as I told Mr. Blunt, that " it should not have charged in the schedule." 

Q. Did you have it struck out of the schedule ? A. No, I did not ; Mr. Blunt 
was judge ; I gave the testimony ; I presume Mr. Blunt struck it out ; he did not 
get the money for it . 

The witness was cross-examined minutely as to entries on the cash-book, and 
stated that the cash-book showed everything in the inventory except two items — 
one of $500 to himself for salary, and $200 claimed by Parret ; it was produced as 
an authentic book of the outlay in the concern, as far as it went ; it shows from 
February 1. 

Q. Was it produced as evidence that the manufacture of the guns had cost the 
amount claimed from the city by reason of showing the amount expended in the 
factory. A. As far as it would indicate. 

Q. Was there any disbursement made by Opdyke or McNeil in this business that 
did not enter into the claim as it was presented to the city fi-om the time the con- 
cern began until it was destroyed? A. All the outlays and liabilities entered into 
my consideration of the cost as presented in the claim. 



//f 



93 



Q. Tou said you considered that an honest mode of making the claim ? A. 
Yes. 

Q. Before this claim was presented, was any other method of making up the 
claim on the principle of actual value and enumeration of the things described, 
attempted ? A. Yes, we tried ; I don' t know that it resulted in anything ; we talked 
over the matter a great deal, and examined the books, and found difficulty in pre- 
senting it in that shape. 

Q. Was there any principle of making up the claim against the city that should 
cover all the money Mr. Opdyke was out of pocket and nothing else ? A. It was 
talked about ; not exactly that ; covering all his costs and liabilities on contracts ; 
not what he was out of pocket, but what the concern was out of pocket ; it was 
talked about between myself and Mr. Opdyke and Mr. Keene. 

Q. Come to the claim for carbines, $110,000. You have stated the proper way 
of presenting the claim for carbines destroyed. Who first suggested that principle 
of charging Government price, and deducting what it would cost to furnish them ? 
A. Mr. Loren Jones first suggested it. 

Q. What was his reason for that way ? A. I recollect no particular reason he 
gave, except that that was a proper and fair way ; I told him I would consider it ; 
I had a conversation with Mr. Opdyke in regard to it ; I don't recollect what he/ 
said, more than his concurrence in the reasonableness and propriety of it_; we both 
considered there ought to appear up to that time some profit on the guns ; we had 
put on the Government price, which covered all the profit. 

Q. Did that strike you as an honest mode of presenting the account ? A. It 
did, in connection with the fact that the property was destroyed, and no further 
guns could be turned out of that establishment. 

Q. Had you ever thought of it before Loren Jones suggested it ? A. I do not 
think I had. 

Q . Had Mr. Opdyke ever suggested it before you talked to him about it ? A . 
I don't think he had. 

Q. Did Opdyke tell you Loren Jones had talked with him about it ? A.I can't 
recollect whether he did or not ; he may ; I told him Loren Jones had suggested it. 

Q. You stated that ' ' Mr. Opdyke said we should be exceedingly cautious to get 
it below, rather than above the actual cost. ' ' When was it he used that language 
to you ? A. It was during the progress of making up the claim ; he repeated it on 
two occasions, and used substantially the same language. 

Q . When the claim was finished was it shown to Mr. Opdyke ? A. I presume 
it was before it was sent in ; I recollect his questioning Mr. Keene as to his careful- 
ness in detail, and Mr. Parret as to his making accurate extracts from the cash 
book ; Mr. Keene made up the carbine claim at his house ; he got the computation 
of various parts at his home, and made it in pencil ; I saw the process after Mr. 
Keene arrived at his conclusion. 

Q. The carbine claim as you presented it to the city includes the full sum you 
would have received from the Government at the contract price, less the specific 
expense to complete the guns, as explained ? A. Yes, sir. 

Q. On that mode of payment, would not the entire royalty for the whole 7,000 
guns have been received, if you had collected the claim as you had presented it ? 
A. Yes, sir. 

Q. At the price you claimed would you not have collected royalty on the 
whole, so that it was due and belonging to the patentee ? A . Yes, sir. 

Q. If you had collected all the royalty that belonged to him, why did you not 
pay it to him when he demanded it? A. We did not collect it ; they cut down our 
claim, that is the only difference. 

Q. And the cutting down of that claim, you put all of the royalty ? A. Yes, 
sir. 

Q. Why did you not give him all the royalty except the $7,000 that had been 
cut down ? A. For the reason that we stated to him, as it appeared from our own 
payments and advances, that we would make nothing on the contract, and really 
any profit we would have made would have been on the balance pf the $10,000, and 
I thought it was right and fair he should share the loss with us. 

Q. The result was that he collected $5,000, when his claim was $15,000, if you 



94 

had collected the whole, and he lost $7,000 on the royalty by that docking? A. 
Yes, sir; I used as argument in adjusting the naatter, that the city had cut our 
claim down, and I believed as the claim was presented, the Supervisors must have 
taken it off the guns, and furthermore it appeared by our accounts that we came out 
about even, and if any forfeit had been made, it would be on the guns subse- 
quently to be delivered. i 

Q. Did you give him to understand that by paying him $5,000 that would 
make you come out about even. No, sir. 

Q. You did pay McNeil an item of profit ? A. Yes, sir ; I think about 28th of 
November last ; it was paid on the principle of Mr. Opdyke and myself conceding 
all the profits — upon the principle of giving him the profits of the whole concern. 

Q. How much was allowed as profit of the concern ? A. About $3,900 ; there 
was a re-examination of the matter by Mr. Opdyke that night, and he found a 
further. profit of $1,500, by examining the 'jheck-book ; there was a loan by Op- 
dyke to Brooks construed as an advance on the contract, which Mr. Opdyke thought 
was a matter between him and Brooks, which should not be counted in the expen- 
diture. 

(Witness was cross-examined at length as to the items in the profit and loss ac- 
counts of Armory, which was published in report.) 

Witness : That was made up by me ; I believe it is correctly stated ; a similar 
statement to show profit and loss was made up before the claim was presented to 
the city ; I do not know where it is ; it corresponded with it substantially. 

Q. You have set down here "Due to patentee $15,000." Did that item appear 
in your computation, as made out before you made up your claim ? A. It did not 
substantially. 

Q. Your statement shows a profit of $2,400 on the face of the paper. If. you 
collected from the city the whole claim as preseftted, what would then be the up- 
shot of your claim ? A. In addition to that statement, there would be the differ- 
ence between $199,700 and $207,000. 

Q. Assuming you got $207,000 instead of $199,700, then upon this statement 
of profit and loss, as it was finally closed, there would have been shown a real pro- 
fit of about $10,000 ? A. That would appear as we settled. 

(Counsel went into a comparison with the witness of the two accounts — the one 
in the claim presented to the city, and the one of yesterday.) 

Q. Did not the schedule and this statement of outlay on your books include all 
the outlay that had been expended in making the guns delivered to the Govern- 
ment as well as those burned up ? A. Including our liabilities ; yes, sir. 

Q. You have stated all the liabilities and outlays ? A. Yes, sir. 

Q. Did you not receive, upon the claim upon the city, if it had been paid in full; 
the outlay that had gone to make the guns for the Government, as well as those 
that were burned up ? A. I always deducted the amount we received from the 
Government. 

Q. Where ? A. In making up my estimate, which was the estimate I had ar- 
rived, in stating to the Committee what was the cost of the concern ; in the charge 
against the city there is no charge for guns delivered to the Government. 

Q. Not in direct terms. But where, in your claim for machinery, tools, labor, 
and outlay, is there any omission of the entire outlay that the factory had been 
put to ? A. We had been put to expense in making those guns which had been de- 
livered, and for which we had received the money. 

Q. Show me, upon your mode of making up the account, where any disburse- 
ments of Mr. Opdyke were omitted from the aggregate of your claim ? A. There 
were two modes presented to Mr. Blunt. 

Q. Have you not charged the expense of making those very guns delivered to 
the Government in your claim against the city ? No, sir, I don't think we have. 

Q. Present me a schedule of disbursements on outlay in the conduct of this 
business, from the time it commenced until the factory was burned up, that is not 
included in the claim, as you presented it to the city ? A. I cannot give it. 

Q. Can you give me a single item of disbursements for this factory, from the 
beginning to the end, that is not included in this claim against the city ? A. Cer- 
tainly ; the item of so much for so many guns. 



95 

Q. It is stated that the cost of making these guns was presented to the Supervi- 
sors in this claim. Now can you point to any item, any subject, or any sum of dis- 
hursement for account of this factory, from the time it began to the time it was 
burned up, that is not included in that sum of $207,000 ? A. I can't point to 
those items, but I know there were costs which entered into the mani^facture of 
those guns we delivered to the Government. 

Q. Can you give me the items of expenditure for material, labor, or machinery, 
or tools, that are omitted in this claim against the city for carbines that were de- 
stroyed, and that go to the account of the carbines delivered to the Government ? 
A. I cannot. 

Q. How long would it have taken to finish the contract and deliver the 7,000, at 
the rate the factory was working ? A. I think we delivered fifty a day. 

Q. Do you know Mr. Weed, the defendant ? A. I have known Mr. Weed by 
sight ; I was not acquainted with him ; I sent the letter, dated October 21, 1863, 
published in the Tribune of October 28, 1863, to that paper. 

(Defendant's counsel offers the letter in evidence. Plaintiff's counsel objects. 
Offered to show the disposition of the witness. Kuled out. Exception.) 

Q. Have you taken a particular interest in this matter of a gun claim, from the 
time it was presented until now ? A. I have taken an interest in it ; my name be- 
ing connected with it. 

Q. Are you in your feelings interested on the side of Mr. Opdyke, and hostile to 
Mr. Weed, in the case ? A. I am not, except so far as justice will appear in the 
case. 

Q. Have you written or published anything hostile to Mr. Weed ? (Objected to. 
Excluded.) 

Re-direct examination — Q. Did the claim presented to the city include anything 
hut the property burned in the armory? A. No, sir. 

Q. Was any expenditure or outlay included that did not enter into the property 
that was burned in the armory ? A. No, sir. 

Q. Was there a single cent mentioned to any human being as entering into this 
property, except what entered into the property burned ? A. No, sir. 

Q. As to the fact whether there was any charge whatever made to the city for 
guns delivered to the Governor, you are perfectly certain ? A. I am perfectly 
certain there was not. 

The Court adjourned at a little after 1 o'clock, to allow of counsel attending the 
funeral of Mr. Noyes. 



TWELFTH DAY. 

THURSDAY, DECEMBER 29TH, 1864. 

At the resumption of this case yesterday morning, Mr. Hamilton Harris appear- 
ed (having come from Albany for the purpose), and stated that he never had heard 
of the letter from his brother, Hon. Ira Harris, to Opdyke, until he saw it in court ; 
that it was on his representation to Mr. Blatchford that Mr. Pierrepout had made 
the statement he did in opening, and he wished to take the blame of that error 
upon himself. 

EXAMINATION OF GEORGE W. FARLEE RESUMED. 

Geokge W. Faeleb. — Re-direct examination resumed — Q. How did you get at the cost 
of the guns burned in the armory ? A. By subtracting the amount we received from 
Government from our whole outlay and liabilities. 

Q. How was the profit obtained, as it finally appeared ? A. Compromising 
claims which were against us. 

Q. It appears by the account No. 2 that there is a loss of $1,500, and you paid 
Hendrickson $3,900 for profits. Explain that discrepancy ? A. There was a check 
in October for about $1,700 that had not been entered into the account ; it was on 
an advance to Marston, and was subsequently discovered by the book-keeper ; in 
regard to the question put yesterday as to my bias agahist Mr. Weed, I would say, 



96 

I mean that my bias is not so great as to prevent my speaking the truth under 
oath ; we allowed Hendrickson too much by a mistake ; my interest was dependent 
on the profits ; my mode of claiming for the carbines did not include any prospec- 
tive profits ; only the profits made to that time. 

Re-cross-examination — Can you state any respect in which there would have been 
more profit on the 7,000 guns, if you had delivered them, than you received from 
your collection from the city ? A. It would not have given us any more profit ; the 
claim on the city included the profits that would have been derived on the arms un- 
finished. 

Q. You say that your bias is not so great as to prevent your speaking the truth 
under oath ; do you think that your bias just falls short of that ? A. I think not ; 
I have no particular hostility against Mr. Weed. 

Q. Do you think you have a bias that just falls short of your speaking the truth 
under oath ? A. No, sir. 

Q. Do you think you are so free from bias as to stand as indifferent as a judge, 
only to have justice done? A. "Well, a judge might try the case of a kinsman and 
be just ; I feel a great interest in the success of Mr. Opdyke in the case. 

Q. Is your bias different this morning from what it was yesterday ? A. No, sir. 

TESTIMONY OF JOHN PARET, Jk. 

John Paret, Jr., called by plaintiff's counsel, was sworn, and examined by Mr. 
Field — I am engaged in the clothing business in the city ; reside in New Jersey ; 
from January to July, 1863, I was book-keeper at the Armory in Second avenue ; 
I kept the cash-book produced here from February 1 to the destruction of the 
factory ; it contains all the cash transactions correctly in that time ; I was at the 
building on the day of its destruction ; the first attack was in the morning ; the t 
police were in the main room ; I was in the office alone ; seeing the door would be 
broken by the mob, I called to the policemen ; a shot was fired ; the ringleader was 
killed ; that deterred the mob for a while ; they returned again, were again re- 
pulsed ; when things looked most threatening the police were withdrawn, and Mr. 
Eeene and I were left alone ; we escaped through the rear of the building ; on my 
return soon after, found the building on fire ; I looked out of the office to see the 
mob ; they were on Twenty-first or Twenty-second street and on Second avenue ; 
it was not possible for md or Mr. Keene to hold that building, or with any force 
under our command, after the police withdrew ; we had nothing to do with their 
being withdrawn ; after the fire, I took means to save all I could from the ruins, 
and disposed of it at public sale ; the proceeds were about $2,600 — the net balance 
after expenses of $2,200 ; I had no knowledge of any of the books being saved at the* 
time, except the cash-book ; heard of another book yesterday. I made out the 
computations for the claim presented to the city ; some portions were made by Mr. 
Keene, which I went over and saw they were correct ; the price of the guns was got 
at by taking the contract price, and deducting the estimated cost for completing 
them ; we took the price of machinery f lom the appraiser's inventory, on the pur- 
chase from Marston ; it was correct ; the cost of tools and fixtures was got at in 
the same way ; they were correctly taken ; the 25 carbines were $2,500 ih Mar- 
ston's inventory, and we reduced it to $625 ; the tools and machinery purchased— 
the prices were taken from the cash-book, including freight and necessary expenses ; 
Mr. Keene and myself went over carefully from our memory the number df tool 
hands we had from 1st of February, and most of them we knew by name, and wrote 
the names down ; I was satisfied that the average was rather below the actual num- 
ber, and that the $17,000 was actually less than what was expended for tool hands ; 
I am now satisfied that it was less ; I was at thefactory everyday, with one or two 
exceptions ; I did not suppose that Loren Jones had any connection with Opdyke 
and Farlee whatever ; he made small purchased for the armory from day to day, 
upon specific orders, $60 at a time ; after that was gone, he would present his 
vouchers and get $50 more ; he received no salary and had nothing to do with the 
books ; wjien I left I would lock the books up. 

Q. _ Was there anything claimed for the guns delivered to the Government in 
the claim presented for the guns on the last page ? A. No, sir. 

Q. Were you examined before the Board of Supervisors ; if so state the course 



'-^f 



J 



. 9t 



of examination ? A. Mr. Blunt examined Farlee and Keene at considerable length 
— Keene more especially ; I heard Keene explain to Mr. Blunt the way in which the 
claim was made up ; he had his papers and memorandums with him, showing his 
calculations and the way in which he arrived at the results ; ^e opened them, or 
offered to show them to Blunt, and explained to him that the guns were charged at 
the contract price, less the estimated cost of finishing ; the two schedules now 
shown me are, according to my best recollection, the papers that Keene showed to 
Blunt. 

Q. Have you been over the list of expenditures on account of outlay, and com- 
pared it with the cash-book from the time you went into the establishment ; if so, 
is that account correct ? A. I have, for the time that I was there, and the account 
is perfectly correct, I have checked the items (produces a copy in which the checks 
are marked). 

Oross-exam^ied — This list of checks embraces all that was received ft-om Opdyke 
from the 3d of February, 1863, to the 14th of August,'1863, for the business of the 
armory ; it was all the money that passed through mj-^ hands that I know of ; it 
foots up in pencil, $82,123.17 ; my keeping of the Cclsh-book commences Jan. 29 ; 
all after that is mine; the total footing from the 1st of December, 1862, is 
$114,350.55 : the figures preceding, $71,117 ; I have no recollection of making, or 
for what purpose I made them : nor have I any recollection when the figures 
$185,467 and the $9,786, making a total of $195,253, were made, or for what pur- 
pose ; I never made any footings, of my own knowledge, to represent the amount 
of the entire advances, but I made those additions for some purpose of my own, I 
presume, to satisfy my own mind ; I have no recollection of the time or t he object ; 
I do not think I showed it to anybody ; I had no recollection of its being on the 
book until it was shown to me here ; it was made a long while ago, probably soon 
after the transaction. 

Q. Was it not made when the claim was before the Board of Supervisors ? A . 
That I do not recollect ; this cash-book was before them ; I do not know that they 
saw it at all ; either Farlee or myself took the cash-book there ; we went together ; 
I was before the board only once besides the time I was examined ; I was there an 
hour or thereabouts each time ; Farlee and Keene were examined the same day I 
was ; the cash-book was offered by me to substantiate the claim, and to give an op- 
portunity to examine it thoroughly and see that all the items were taken from it ; 
if I had then made this pencil footing I should certainly have recollected it ; it was 
not made for the purpose of showing to the Supervisors ; the cash-book does not ■ 
show footings ; to the best of my recollection there was nothing said by Blunt on 
the subject of what the total outlay was, nor did I state to him the total of 
these footings ; Blunt took the cash-book and looked it over for a few moments, 
and compared the items with those on the schedule ; I left Farlee and Keene 
there, and probably left the cash-book in Farlee's custody (witness shows two or 
three items in answer to a request of the counsel, corresponding in the cash-book of 
the schedule ;) when Keene was testifying the clerk took notes, but as a general 
thing he would turn to Blunt, who told him what to write ; I knew of items 
purchased of Marston not included in this claim ; a great portion of the expenses 
on the cash-book are for material, stock, expenses, &c., which you can't find in this 
claim, except as estimated in the value of the guns ; the schedule claims only for 
machinery, tools and fixtures ; the materials of the guns are not specified, all the 
new supplies after December, 1862, are charged here ; few tools were broken or we 
would have had many more tool men theie ; I am now in the clothing business, in 
company with Henry Paret ; Wilson Gr. Hunt and George Opdyke are our special 
partners ; it was established on the 28th of November, 1863 ; I was clerk for Op- 
dyke before that for nearly two years, in his business as a merchant ; I had been 
out of Opdyke' s employ when I went into the gun factory ; these papers presented' 
by Keene in this trial are in my hand-writing ; I know that after I went in there 
were 29 tool hands ; before that I only know it from seeing the pay-roll ; I paid 
the men myself and had daily intercourse with them ; the ledger now shown I ne- 
ver saw till yesterday morning ; I kept it commencing in January, 1863. 

He-direct — The claim for tools is included in the charge for tool hands ; they 
were duplicating tools all the time. 
1 



98 

TESTIMONY OF MILES FKENCH. 

Miles French sworn. Examined by counsel for plaintiff— I was employed as 
book-keeper in this factory from December 1, 1862, to January 29, 1863 ; I made 
no entry in this cash-book of any payments by Farlee to the credit of Marston on 
account of debts he assumed by Marston ; I kept that account on some book or paper, 
intending when they were all paid to make one general entry in the cash-book ; 
that book or memorandum I left in the factory among the other papers ; I know 
there were such payments made by Farlee. 

Cross-examined — I saw the receipts ; I did not, see him pay any of the debts ; I 
think I saw one of the checks ; I cannot state the amount ; it was my business to 
enter payments in the cash-book, if I thought proper ; I was to do as I thought 
proper ; I do not remember who was Superintendent when I went in ; Knowlton 
came in soon after I did and stayed as long as I did. 

. TESTIMONY OF GENERAL CHARLES W. SANFORDl 

Gen. Charles W. Sanford sworn. Examined by counsel for plaintiff. On the 
morning of the 13th of July,*1863, on reaching my office about 10 o'clock from 
Westchester county, where I had been on Sunday, I found a note from Mayor Op- 
dyke, requesting me to go immediately to his office; I went and -found him and 
his private secretary there ; he informed me that there was a rery serious riot up 
town, which in- his opinion required the intervention of the military ; after hearing 
the information which he had, I concurred with him, butfstated that the military 
force then at my control was very small ; I -however offered to do all I could ; the 
Mayor then made a requisition for the military ; I proceeded to collect as many 
men as I could, and ordered most of them to the Seventh avenue arsenal a few to 
the Elm street armory ; about 12 o'clock I arrived at the Seventh avenue arsenal, 
and as soon as I could collect a sufficient force I moved down Broadway and dis- 
persed all the rioters as we went ; the men were kept busy all that day on the west 
side of the city till about one o'clock in the morning, when the riot subsided to a 
great degree ; sometime during the morning of that day I received a requisition 
from the Police Commissioners to suppress the riot ; everything was done that could 
be with my force ; the regiments that were absent were telegraphed for, and did 
not arrive till Wednesday evening ; after they got here the riot was immediately 
suppressed ; if we had had three regiments at first^he riot woiild never have ex- 
tended beyond the first day ; indeed, I had suppressed it on the west side of town, 
only I had not men enough on account of some of my troops having been withdrawn 
by General Brown, who interfered with General Wool's orders, the riot became 
more furious than before ; I communicated with the Mayor by messages by Staff 
officers, but I only saw him after Monday but once at Governor Seymour's quar- 
ters at the St. Nicholas, and once prior at the office of the Police Commissioners a 
few minutes ; I could not see what the Mayor cbuld have done that he did not do; 
we had no efficient troops ; the citizens were undisciplined and could do nothing 
against large masses, . 

TESTIMONY OF RUFUS F. ANDREWS. 
RuFus F. Andrews sworn. Examined by Mr. Emott, counsel for plaintiff. I am 
a member of the bar ; I liave known the plaintiff intimately since 1859, and had a 
speaking acquaintance with him some years before ; in 1859 I endeavored to secure 
his indorsement by the branch of the American party vfith. which I was connected ; 
I continued -with that party till 1860, when I supported Mr. Lincoln; I first be- 
came acquainted with Charles McNeil in 1859 ; he was a member of the American 
party in the convention which indorsed Opdyke ; I was appointed Surveyor of the 
port of New York in 1861 ; I was a candidate for that position before I had any 
knowledge of the fact ; during the last week in June I was informed that my name 
was suggested to settle a difficulty that existed between two branches of the 
party ; there Imd been from the fourth of March, two candidates, Wakeman and 
Stanton ; after Lincoln's inauguration I was a candidate for District Attorney for 
this district ; I did not withdraw ; at Mr. Evart's personal request another gentle- 
man was appointed [laughter] ; I went to Washington on the 29th of June and re- 
turned the same day. 



;% i 



99 

Q. What did you learn at that time ? (Objected to.) 

Counsel for plaintiff offered to show that the witness was informed while at 
"Washington, upon competent authority, that he was to receive this appointment of 
Sui'veyor. (Excluded — exception taken.) 

Q. You went there because of the appointment ? A. I went there because it' ' 
h!i,d been suggested to me that it would do as well for me to show myself, and I 
returned on the suggestion that it was not best for me to remain, (laughter) that 
ii, vould only excite the ire of the two belligerents who were fighting each other 
and they would turn and fight me. (Laughter). 

Q. Had anything been said previously to you about your being a candidate ? 
A. Mr. Barney had informed me that my name was mentioned in "Washington ; he 
was the first who spoke to me on the subject ; I had spoken to nobody. 

Q. Was there any announcement in the pu blic prints, and if so when, that you 
were to receive this appointment ? (Objected to — excluded — exception taken). 

Q. Did you have an interview with McNeil when this subject was mentioned ; 
if so state it ? A. The first time I ever had any convetsation with McNeil was on 
the morning of July 5, when he called at my house, and I think some fifteen or 
twenty other gentlemen called before I got my breakfast, all wanting positions 
under the Surveyor of the port. (Laughter). I disposed of them all as fast as I 
could ; McNeil remained ; he said he saw by the papers that I was appointed, or 
was to be appointed, Surveyor ; that he was very glad to see that such was the 
case ; that he and I had belonged formerly to the American party and had acted 
together in the campaign of 1859, when we supported Opdyke for Mayor ; he said 
that they had no politicians in the Custom-house; that Barney had no taste for 
politics, and Dennison had never had anything to do with any political organiza- 
tion, and he was very glad to see we were to have a politician in the office ; he went 
on to say that he had an idea of running for Assembly on the Republican ticket, in 
the Eighteenth Ward ; (he had since run in Queen's County) and that he should 
want some assistance probably to secure his nomination and carry his election ; he 
said also that he felt a very great interest in having Opdyke nominated for Mayor 
at the coming Fall ; my recollection is that I remarked to him at that time that it 
was very early in the season to talk about run^iing a mayor, and he said he thought 
it was time to begin an organization, that the Democratic party was divided, and 
with sufficient patronage from the Custom-house and sufficient support in the way 
of the usual collections, we would be able to carry Opdyke in if we could get him 
nominated ; I told him if I received the appointment of surveyor I would endeavor 
to do whatever I could for the interest of the party, and whatever was usual in the 
way of collections ; he said he felt very much gratified to hear me speak in that 
way ; that he did not know but I had some feeling toward Opdyke by reason of his 
having favored another man's appointment ; I told him I had not the slightest — 
that Opdyke's relation to me had been most intimate ; I had been in the habit of 
seeing him almost daily and conversing about matters going on in Washington, 
and that I had studiously kept from him any knowledge of the fact, till I found it 
was decided in Washington, that I was a candidate, because any influence on his 
side of the house, or on the side of Weed, would be fatal to my chances — which 
seemed to gratify him very much ; then he saiS^ that Williamson felt a very great 
anxiety to bring about the nomination of Opdyke, and he wished me to meet 
Williamson, who was then his particular friend, at his place, as he called it, corner 
of Twenty-third street and Broadway, that evening ; that he would see Williamson 
and have him there ; I said to him that, after meeting some gentlemen at the 
Fifth Avenue Hotel that evening, I would call at his place ; I called there about 
half-past eight or nine o'clock, and found McNeil sitting in the saloon ; I was 
never there before ; Williamson was not there ; we waited half or three-quarters 
of an hour for him ; McNeil then said something must have detained him, and 
wished me, as a personal favor, to call there the next evening ; the next evening 
I went and found Williamson and McNeil together sitting in the main room ; 
they asked me into a private room ; it was about nine o'clock ; Williamson con- 
gratulated me on the good news, as he called it, that I was to be surveyor, and 
commenced to speak about the circumstances under which I was appointed ; one 
of them was certainly very liberal in trying to entertain me, for he had a table 



100 

spread with fine wines and plenty to eat ; I judged from that that they wanted 
Fomething of me, I did not know exactly what ; I did not pay for the entertain- 
ment ; Williamson said he understood that mine was an independent appointment 
for the American party, and that he nor his friends had had nothing to do with it ; 
he then spoke of the coming campaign, and seemed to be very anxious that Opdyke 
should he nominated for Mayor, saying that he had always taken very great inttsr- 
est in his success— -as I knew he had in 1859 — and he wanted to see what could be 
done in the way of patronage to secure his nomination, and then what could be, 
done in the way of raising money from the Custom-house to carry his election ; I 
repeated to him what I had said to McNeil, that it was rather early to talk about 
that ; I was not aware as yet that Opdyke would consent ; that I had conversed 
witli him in reference to whetlter he had intended to run, and he had assured me- 
he had no such intention ; Williamson said he thought him the strongest candidate, 
and tha.t it was for the interest of the party and all of us that he should be nomi- 
nated ; he then spoke of Barney's not being a politician, having no taste for 
politics, and of Dennison, the naval officer, not being familiar with the party or- 
ganizations of the city ; he said he was very glad I was to have the office ; that we 
had acted together in politics, and he thought we could do so again ; he said it 
would be necessarj"- to have some appointments made for each. of the organizations 
of the several wards, in order to interest the different associations, and wanted me 
to use my influence to liave that brought about ; I told him my patronage was very 
light, but so far as I had any influence it should go for the benefit of the party ; he 
then said it had been customary to raise large amounts from the Custom-house for 
election purposes, and he thought the heads of the department there would not 
take hold of the matter with rigor when the time came ; all this was said by Wil- 
liamson ; McNeil occasionally put in a word ; I told him I should do as the mem- 
bers of tlie Democratic party had done — raise all the money I could legitimately and 
reasonably, to carry any election we had ; he said he was not exactly familiar with 
the percentage of tax they had usually put on, and stated what they had put on in 
the Tax Commissioner's office, which I thought rather steep, and told him that I 
had understood that two per cent, on' the salaries was the usual assessment ; he did 
not state the percentage in his office, but mentioned that one man, Wm. M. Mcln- 
tyre, was assessed $250, whose salary was $1,000 or $1,500 (laughter) ; he was dis- 
charged because, as he swore before the legislative committee, he would not pay 
more (laughter) ; we figured up what the two per cent, would amount to,, and made 
it from $10,000 to $15,000, dependent upon whether they all paid ; he expressed 
himself gratified at the view I took of it, as a partisan, and spoke of liis expecting 
to get all the publishing of the proceedings of the Commoa Council in Ihe Sunda^j 
Dispatch if Opdylte was elected ; something was said, also again, about McNeil's 
being a candidate for Assembly ; subsequently he came and told me he hati con- 
cluded not to run. 

Q. Was there anything said about Opdyke's supporting you, or ceasing to sup- 
port any other candidate for Surveyor ? A. There was nothing of that kind said ; 
Williamson said he had entertained the idea that, by reason of Opdj'ke's having 
supported Stanton up to the last, I might entertain some unpleasant feeling toward 
Opdyke, and he was very glad to see that that was not so ; that was the whcde con- 
versation in which Opdyke's name was mentioned. 

Q. Was there any agreement on your part to do, or cause anything to be done, 
if Opdyke should cease to support any one else and support you ? A. No, sir ; on 
the other hand, his influence would have destroyed my chance, and so would 
Wood's ; both McNeil and Williamson accepted my appointment as a fixed fact ; 
not a word was said by either of them expressing a desire that Opdyke should sup- 
port me, or take any part in the matter ; my relations with Opdyke were more in- 
timate than those of either of those gentlemen, and I concealed from him all this 
time the fact of what was going on at Washington, until it was announced in the 
papers ; I met Opdyke in front of St. Paul's Church, in company with General 
UUmann and Merwin R. Brewer, just after my return from Washington, and I re- 
marked to Opdyke that my appointment was decided upon ; he said, " Well, I am. 
not displeased or gratified — it was not in my power to do anything for you, being 
committed to another, but the relation between you and me is such that it is en- 



'p^ 



101 

tirely satisfactory;" that was before the interview between Williamson, McNeil, 
and myself ; I suspected, at the time that McNeil called on me, that he had ob- 
tained the idea from Opdyke, and had come to seek patronage on that account. 

Q . Did you ever meet McNeil or Williamson, and express your thanks and ob- 
ligations to them ? A. Never, they had nothing to do with it ; the only subsequent 
interview I had with McNeil of anyleogth was about a week after I came into office 
(which was the 1st of August ; my appointment was made on the 13th of July and 
confirmed on the 16th) ; he asked me what I was going to do about appointments ; 
he said he had concluded not to run for Assembly ; I said, " I shall not want any of 
the appointments talked about, because I can get along without ;" said he, " I un- 
derstand you are going to make none until the 1st of September ;" said I, No, I 
am going to wait and see who are the most efficient men, who can run the machine 
and whom I can spare ;" said he, " look here, there is some money to be made out 
of this, and if you will let me know a week or two before who you are going to ap- 
point, I will get $300 a-piece ;" whereupon I denounced his proposition as infam- 
ous, and there was a considerable row, a number of clerks being present, and the 
gentleman walked out. 

Q. Did you have an interview with him in Washington ? A. I never did ; I 
heard all his testimony ; it is false from beginning to end ; I never met McNeil 
with Opdyke in Washington ; I have no recollection of ever seeing him there ; since 
the interview just referred to at my office I have never spoken to McNeil at all ; if 
he had shown himself in the office he would have been put out quick enough ; I 
heard Williamson testify ; my relations with him were friendly until with a month 
or two after I had been in office, when the collector sent down a note to me by .Wil- 
liamson's brother requesting me to examine him for inspector ; I did so, and found 
him totally incompetent ; I found his handwriting was such that he could not make 
out a return, (objected to), and I refused the certificate ; Williamson came to see me 
within a day or two, and urged me to certify to his brother's competency ; I told 
him in the discharge of my duty I could not do it ; then he brought in two or three 
others to try to persuade me to give it, but I refused ; then he left me in very great 
anger, and from that day to this he has not published one of his papers without 
some slimy article about me — even in the very midst of this trial. 

Mb. Evahts here objected to the witness, who was a lawyer, persisting in going 
on giving incompetent testimony after he had been frequently rebuked. 

Witness stated that he was not aware of having been rebuked. 

Q. Did you ever pay, or cause to be paid, to Opdyke any money for anj'thing 
whatever ? A. I never paid one cent to Opdyke for anything, either in any busi- 
ness or political transaction, nor ever caused any to be paid, nor ever agreed to. 

Q. Did you have control either of the appointments or of the appointees in the 
Custom-House ? A. None except a few, some 28 all told ; the number has since 
been increased. 

Q. How many officers are there in all departments of the Custom-House ? About 
twelve hundred ; they vary from day to day ; the number has been increased since 
the outbreak of the war. 

Q. Did Opdyke do anything to procure your appointment ? A. He did not. 

Q. Or to withdraw his influence from anybody else ? A. Nobody was with- 
drawn ; the President appointed me independent of both factions, and he knows it 
as well as anybody. 

Q. Were you pressed as a candidate of the American party ? A. I can't say who 
pressed me ; I can -only say that the President informed me that he appointed me 
exclusively for the American party, on account of their support in 1860 ; it was his 
own appointment. 

Q. Did you ever raise any money in' the Surveyor's department? if so, how 
much ? A.I did ; some two per cent from some $400 or $500. 

Q. What was done with it? A. It was paid over to the committees ; it was the 
same assessment that Barney levied at the time he issued his circular. 

Q. (By a juror.) I think that McNeil testified that he met Andrews, and they 
walked down together ? A. I never walked down with him ; all his statement 
about meeting me on the morning after my appointment at Opdyke's is untrce ; 
nor did I ever thank hirn or Williamson, for anything, for they ha-d* nothing to; diO 
with the matter. 



102 

Q. Was the contribution for the Custom House voluntary ? A. Entirely so as 
I understood it ; I read the circular ; I saw gentlemen paying their assessments 
and heard no complaint. 

Q. Did McNeil say in that interview that Williamson had come to hear your 
promises to raise money in case Opdyke would support you? A. Nothing of the 
kind. 

Witness was further interrogated in regard to what McNiel testified to about the 
offer to raise $10,000 for Opdyke's election, and other things that were said at the 
interview at the oyster house, the counsel reading from the testimony of McNeil, 
and denied emphatically all the statements. 

Cross-examined by Mr. Evarts — In the interviews with McNeil, the general ob- 
ject of supporting the Union and Republican party was spoken of ; I stated that 
the sums to be raised in the Custom House would vary from $10,000 to $12,000 or 
$14,000, depending on those who had paid assessments ; after I went into the office 
there was money raised for other political objects besides the election of Opdyke ; 
I can't tell for what other purpose it was raised that fall ; I paid assessment and 
knew others did for the fall election. 

Q . Was there any requisition on the clerks of the Custom House that fall, 
except for Opdyke's election? A. Not in my department ; I do not know how 
much was raised for Opdyke's election ; I think $7,000 ; but have to depend 
on what I have heard ; I can't say beyond reading Mr. Barney's testimony and 
what I heard; I had a conference with Mr. Barney before the money was 
raised; the party was urgent on us to raise money for the election; Mr. 
Barney did not like the idea ; I told him I thought it was his duty to do as 
the Collectors had done ; I understood the usual amount raised was two per cent. ,; 
I said I thought we ought to raise the usual amount in the Custom House ; that 
year two per cent, was assessed ; I don't know that that was the usual assess- 
ment ; the Democratic party have assessed three per cent. ; there was no emergency 
this fall, and there was an assessment of three per cent. 

Q. Have you any knowledge of an assessment on the Custom-house previous to 
this, for a Mayoralty election ? A. I have heard of it, but not being there would 
not know ; I inquired, and was informed they were usual ; when I was looking for 
the office I understood there were two candidates pressed by the two wings of the 
party ; Mr. Wakeman was pressed by the Seward and Weed branch, Mr. Stanton, I 
understood, was pressed by the Chase or Radical branch of the party ; I understood 
Mr. Opdyke to belong to the Radical branch ; I was very intimate with Mr. Opdyke 
before this, and spent evenings at his house frequently ; he urged my appointment 
for United States District Attorney ; I was urged by the American party ; I also had 
the support of Mr. Opdyke and Mr. Greeley ; Mr. Opdyke told me Mr. Stanton was 
his candidate for the Surveyorship, and said he thought he would receive the ap- 
pointment ; that was before my name was suggested ; Mr. Brewer and Gen. Ull- 
mann were with me when I met Mr. Opdyke in the street ; Mr. Brewer acted with 
the American party ; Gen. UUmann was considered a leading man in the American 
party. 

Q. What words did you use to Mr. Opdyke when you met him in Broadway ? 
A. The substance of what I said to htm was, that I was to have this appointment 
of the Surveyorship of the Port ; he seemed to be pleased about it, and said, " I 
am satisfied ; it was not in my power to do anything for you. but I am satisfied 
with the results ;" I understood Weed and Opdyke to be friendly at the time ; at 
the interview with McNeil and Williamson, 1 did not hear it stated that Mr. Op- 
dyke desired to be a candidate, but that they desired him to be a candidate ; I 
knew, from having talked with Mr. Opdyke, that it was not his intention to be 
a candidate at all for the Mayoralty ; after he was nominated, there was great 
difficulty to get him to accept. 

Q. Did you convey the idea to WUliamson that you would do what it was cus- 
tomary for the Custom-house to do toward Opdyke's election, in case you received 
the office ? A. I gave these gentlemen to understand that I would give my sup- 
port to whoever was nominated ; I told them my relations with Mr. Opdyke were 
friendly ; I stated that if I occupied the position in the Custom-house I should do 
as was usual to carry on the election ; I understood the object of Williamson and 



/^/ 



103 



McNeil was to secure an inside track and control patronage ; if their object was to 
make any agreement, or put me in tlie position of making any agreement for the 
support of Mr. Opdyke, they certainly did not declare it to me on that night ; I see 
a moral wrong in the proposition as they have put it here, and I would not be 
guilty of it any more than I would cut ofif my right hand ; no such thing ever oc- 
curred, and I would not be in such a transaction ; Gen. Ullmann was interested in 
my appointment, just as Mr. Weed is interested in getting men appointed, as & 
recognition of the party to which he belonged, he was not interested pecuniarily in 
a cent. 

Q. Did you go to Washington between the time you have stated you left here 
on 30th June, and time you went into the office ? " A. Yes, sir ; I arrived at Wash- 
ington on the 10th of July in company with Gen. Ullmann, Merwin W. Brewer, Dr. 
Price, then comptroller, and the gentfemen ; it was intimated that the President 
would like to see some of the Americans in reference to my appointment. 

Q. Tou went with a view to secure the appointment ? A. I did not ; I con- 
sidered the appointment was made ; it was merely to gratify the President to show 
it was satisfactory ; it was suggested by Senator Harris ; these gentlemen went on 
to show the President such a satisfaction would be entirely satisfactory ; the Presi- 
dent had not then sent in the name to the Senate. 

Q. How did you first know Mr. Opdyke was to be a candidate for the Mayoralty 
that season ? A. I did not know it until after the conventions met ; the American 
party, with which I was, nominated De Peyster Ogden ; I participated in that con- 
vention and nomination ; he did not run ; after Mr. Opdyke received the nomina- 
tion of the Eepublican party, he hesitated* about accepting it for some time ; he 
said he would not acce])t it unless there was a union of all the elements opposed to 
the Democratic party ; we went to work to do that ; I had a hand in getting the 
American party to indorse Mr. Opdyke' s nomination; I did not understand Mr. 
Opdyke to have any doubt of accepting the nomination after the union was made on 
his name. 

Q. Did you understand a question which arose as to whether Mr. Opdyke and 
the other friends of Mr. Stanton would acquiesce in your appointment? A. I never 
heard anything of that kind*>.it was an independent appointment entirely, as the 
President knows. 

Q. An independent appointment which grew out of the opposition between the 
two wings ? A. Yes, sir ; he thought if he appointed either, he would oifend the 
other ; so he would appoint a neutral man, and let them fight the battle out ; that 
is the way I understood my appointment ; I left the office on the 22d of Septem- 
ber, 1864 ; Mr. Wakeman succeeded me — the same person who was a candidate of 
one of the wings of the party before . 

Q. Have you any feeling of bias as between the parties of this suit ? A. I have ; 
my bias is in favor of Mr. Opdyke ; I have had a very bitter feeling against Mr, 
Weed for some time ; it dates from the time that he first attacked me in the news- 
papers, some months back. 

Q. Have you a feeling against him in respect to losing your office ? A. I have — 
not on account of the loss of the office, but on account of the course he took. 

Q. You think he had something to do with your having that office? A, 
Yes, sir ; I know he had ; I would be an inhuman being if I did not have a 
feeling of hostility towards Mr. Weed ; but I would not do him an injustice in 
my testimony. 

TESTIMONY OF GEORGE LOCKWOOD. 

Gbokge Lockwood, called by the plaintiff. I was a partner in the firm of George 
Opdyke & Co., while it was in existence ; while Mr. Opdyke was Mayor I was act- 
ing as senior partner, in 1862-3 ; I do not know his exact interest, but it was be- 
tween thirty and forty per cent. ; 1 remember the garments made by Smith Bros. 
on the Spaulding cloth ; the loss to ou^: firm on the excess of 4,000 garments was 
$7,000; the garments returned were ^old at private sale at $2.50, less five per 
cent. ; there was a defect in the cloth ; we never could get the dyers to make a per- 
fect thing of it ; they were sent to Scott, a dyer in Paterson ; some portion sent 



104 

to Staten Island and returned ; we wanted to have Mr. Spaulding take the cloth 
back ; he refused. 

Gross-examined — Q. What was the whole amount of Goveriiment contracts you 
were interested in, directly or otherwise, during 1862—3 ? A. Our contracts with 
the Government were not to a great extent. 

Q. What interest had you in the contracts spoken of by Mr. Carhart of 
$4,700, OOOi A. Our firm had one-third interest, through Mr. Carhart ; I suppose 
you meant contracts we had directly with the Gove rnment. 

Q. What other contracts did you have an interest in ? A. We had an interest 
in contracts with Smith Bros., to the amount of 16,000 infantry coats ; Churchill 
made a sale of some goods we had for us ; we had no interest with him in any con- 
tract ; we had a small contract with Colonel Vinton, here, for blankets — none else- 
where ; I had something to do with executing that. 

Q. What was the interest of Opdyke & Co. in the Smith contract ? A. One-half 
the amount of 16,000 coats. 

Q. Who were partners in the firm of Opdyke & Co. at the time of those Govern- 
ment contracts? A. Mr. Lurher, Mr. Stroebell, Mr. Stryker, Mr. Gautrill, myself, 
and Mr. Opdyke ; the firm existed until a year ago last June. 

TESTIMONY OF SAMUEL B. STEYKER. 

Samuel B. Stkyker, called for plaintiff, testified : He was a partner in the firm 
of Opdyke & Co. until June, 1862 ; is now in printing and dying business ; remem- 
bers goods bought of Spaulding ; about 40,000 yards were delivered ; 5,000 yards 
were returned to Spaulding, after Scott had hired to dye them indigo blue ; the Staten 
Island Company had about 28,000 yards to dye ; they dyed them with a good indigo 
blue ; I saw them before being dyed ; they were spotted, and where the spots were 
they would not receive a good indigo blue ; I think they could have been dyed black ; 
they were bought of Spauldmg as perfect goodsi; in cutting up they were obliged to 
cut round those spots ; some of the goods returned by Scott were dyed over by the 
Staten Island Company ; some of the spots still showed. 

Cross-examined — The goods that were spotted did not go into the Government 
garments ; I saw the spots cut out ; all the goods received by the Government 
were a good indigo blue ; the Government rejected about 4,000 coats, partly, I be- 
lieve, on account of the spots ; I do not know the exact reason ; that happened 
after I left the concern. 

TESTIMONY OP JAIIES F. YOUNG. 
James F. Young, called for plaintiff : I am Secretary of Staten Island Dyeing 
establishments, who dyed about 40,000 yards of the Spaulding cloth spoken of ; 
they were dyed with a good indigo blue ; did not receive the blue well ; different 
portions of the piece were different shades when they came out of the dye. 

TESTIMONY OF WILLIAM RICHARDSON. 
WiLUAM Richardson, called by plaintiff, sworn : In 1863 I was messenger in the 
Mayor's office ; was there during the whole time of Mr. Opdyke's mayoralty ; I 
know Charles McNeil ; recollected his coming to the office after the claim against 
the city was presented for the armory. 
Adjourned to 10 o'clock to-morrow. 



THIRTEENTH DAY. 

FllIDAT, DECEMBER 30tH, 1S64. 

t 

WILLIAM RICHARDSON CALLED. 

Theplaintiffcalled William Richardson, a messenger in theMayor's office during 
Mr. Opdyke's term of office, for the purpose of impeaching Charles McNeil, and to 
prove that McNeil declared to him, while the claim for the armory was pending, 



/ v^' 



105 

that from his knowledge of Mr. Opdyke, he knew he would not put in a claim 
that was not perfectly just. 

Counsel for defendant objected on the ground that it was collateral, and there 
was no foundation for the evidence. Excluded. 

ALBERT EOBERTSON CALLED. 

Albert Robertson was also called to impeach McNeil, and prove that McNeil 
had borrowed a sum of money of the witness, and on that occasion told him that 
he had invested $20,000 in the gun factory. 

Same objection and ruling. 

EDMUND REQUA CALLED. 
Edmund Requa was called on the same question, and excluded. 

TESTIMONY OF JAMES T. BARRETT 
James T. Barrett, being sworn, tes ified that he was employed as Superinten- 
dent of the Staten Island Dyeing Establishment ; that establishment dyed nearly 
30,000 yards of the Spaulding cloth for Opdyke, with indigo blue ; piece goods 
axe not susceptible of as good a dye as other goods. 

TESTIMONY OF MERWIN R. BREWER. 
Merwin R. Brewer, called by plaintiff and sworn — I reside at No. 133 East 
Thirty-fourth street ; am a lawyer ; know Mr. Opdyke and Mr. Andrews ; on one 
occasion when walking with Mr. Andrews, I met Mr. Opdyke in Broadway ; it was 
on an occasion when the Survpyorship was mentioned ; on the 1st or 2d of July 
1861 ; General Ullmann was with us ; there was some conversation. 

Q. In that conversation was anything said about the office of Surveyor, and if 
so, what took place 1 (Objected to ; admitted ; exception.) A. We were walk- 
ing up Broadway, and met Mr. Opdyke coming down ; Mr. Andrews bowed, and 
they stopped ; Mr. Andrews said, " I am to be the next Surveyor of the port of 
New York ;" Mr. Opdyke said, " Well, I am satisfied," or words to that effect ; 
he then went on to say that he felt hiniself under obligations to Mr. Andrews ; that 
hewa- satisfied his man (Mr. Stanton) could not be appointed, and in that event he 
would rather see Mr. Andrews appointed than any one else ; there the interview 
ended ; on the 9th of July I went to Washington with other gentlemen. 

Q. What occurred while there ? 

(Objected to. Plaintiff' offers to show that Mr. Andrews' appointment was pro- 
cured without any intervention or agency of Mr. Opdyke, and to contradict 
McNeil on that subject. Admitted). 

Q. Was Mr. Opdyke there ? A. No, sir ; I went on tl|e 9th and left on the 
15th ; it was a committee composed of Messrs, Ullmann, Bertholf, Price, Denison, 
Kirke, Cooper, and myself, which went on for the purpose of securing Mr. An- 
drews' appointment ; Mr. Opdyke was not with us ; the committee took no letter 
nor communication from him ; he had no intervention or agency in the matter 
of any description ; I never dreamt of Mr. Opdyke in the transaction at all ; never 
heard him mentiontd ; I was present at the interview with the President. 

Q. By what means, and in what manner, was that appointment of Mr. Andrews 
made ? (Objected to, on the ground that it would open up the whole subject of 
what influenced the appointment. Court admits evidence of what took place before 
the President.) A. On Tuesday or Wednesday, the 10th of July, 1861, the com- 
mittee I have named was at the President's mansion at 12 o'clock ; he informed 
us that he was busy, and asked us to call at 8 o'clock in the evening ; we called, 
and had an interview of an hour and a half or two hours ; we had prepared a writ- 
ten argument or statement urging the appointment of Mr. Andrews, alleging the 
services he had rendered and the services his friends had rendered ; we stated to the 
President that we did not belong to the Republican party, and never had, but we 
had supported him ; that Mr. Andrews and Gen. Ullmann had rendered very essen- 
tial service ; that we had no one in Washington to represent our interests, and there- 
fore had come to him to look after the interests of the American party ; the Presi 
dent, after hearing everything that took place, and reading over the paper, stated, 



^ v'^ 



106 

Gentlemen, I appreciate the service you have rendered to me in the last canvass, 
biit I am not prepared to decide this matter this evening ; I have made an implied 
promise to the Secretary of State that, before I decided this matter, I wonild consult 
vrith him in reference to the premises, but by Thursday evening this matter shall be 
settled, and you shall not be disappointed ; among other things, Mr. Ullmann stated 
that he and Mr. Andrews had called on him at Springfield, 111. , before the inaugur- 
ation, and he had then agreed to take care of the American interest ; that if he in- 
tended to carry out the promise there was now no other appointment of any note 
left in the city of New York, every other oSice being filled-, except this ; on Thursd:.y 
we received a satisfactory message ; we returned on the 15th ; Mr. Andrews re- 
mained a few days ; I have not stated all the conversation, but the substance 
of it. 1 

Cross-examined by Mr. Eomis. — In summer of 1861 I was a lawyer. 

Q. What was your connection with politics then ? A. About the same as yours, 
su" ; I held no office. 

Mk. Evarts — I hope you will not refer to me, sir ; it is a great piece of imper- 
tinence. You are a lawyer, and know better. 

Mr. Brewer — I meant no disrespect ; I shall not do so. 

Q. What was your connection with the American party ? A. I was a member 
of the party ; I was not a member of any committee ; these gentlemen I have 
named were friends of Mr. Andre ws_^; I suppose a self-constituted committee ; we 
had commuicated with Mr. Andrews on the subject of aiding him ; in fine, Mr. 
Andrews stated to me that it had been intimated to him that he could get this ap- 
pointment ; Mr. Andrews went on and returned ; Senator Harris, it was said, had 
stated that it would be a good thing for Mr . Andrews, if some members of the 
American party would go on and urge his claim to the President ; I knew there 
were other candidates for the office ; knew the parties pressing each, and that they 
were not friendly ; I had very little to do with Mr . Opdyke at that time in poli- 
tics ; we were of different parties ; I have no copy of the paper presented to the 
President ; i^ was written by Dr. Price or General Ullmann ; we all, including Mr. 
Andrews, made suggestions ; it was stated to the President that Mr . Andrews had 
greatly impai,red his health by his exertions in that campaign ; also, that we had 
got up a ineeting, immediately after his nomination, irrespective of party, support- 
ing him ; Mr. Ullmann also reminded the President that he and Mr. Andrews had 
called on him at Springfield, 111., before the inauguration, and obtained his pro- 
mise that he would take care of the interests of the American party ; also, that he 
(Mr. Ullmann) now withdrew all claims for himself ; the committee met frequently 
at my house, from the inauguration up to Mr. Andrews' appointment ; I fix the 
time of our meeting Mr. Opdyke in the street about the 1st of July, from the fact 
of my going to Washiiwton on the 9th, and also from the fact that General Ull- 
mann was here at the time, and 'returned a day or two after the conversation ; Gen. 
Ullmann is now at Port Hudson. 

TESTIMONY OF GEOEGE W. BLUNT. 

George W. Blunt called by counsel for plaintiff. I am a chart and book pub- 
lisher ; I have resided in this city since 1810 ; I have been an ardent amateur in 
politics until within the last year ; I was Chairman of the Finance Committee in 
1859, when Mr. Opdyke first run for Mayor ; we raised very little money then. 

Q. Has it been customary to raise money for election purposes from employes in 
the public offices ? (Objected to ; excluded as having been already sufficiently proved ; 
exception taken.) 

Q. During the second Mayoralty canvass, when Mr. Opdyke ran, what was done 
in respect to raising money ? (Same objection and ruling.) 

By the Court— If you know anything about collections through the Custom- 
house from the Surveyor of the Port^ you may state it. A. I know nothing 
about it. 

Q. Had you anything to do with collections Or committee-men, or otherwise, in 
1861 ? A. No, sir ; I was a subscriber to 4he fund to the committee of which Ti- 
mothy G. Churchill was Chairman ; the friends of Opdyke met at Mr. Churchill's 
house, sojne fifteen or twenty in number, when some money was subscribed, and a 



/i^(o 



lot 

committee was appointed to solicit further subscriptions for Opdyke's election ; this 
was after the nomination, of course. 

Cross-examined — It was, as usual, a few days, say ten or fifteen, preceding the 
election 

TESTIMONY OF TIMOTHY G. CHUECHILL. 

Timothy G. Churchim-, called by counsel for plaintiff. I was Chairman and 
Treasurer of the Finance Committee when Mr. Opdyke was elected Mayor ; a meet- 
ing was called at my house in November, with a view of raising funds to defray ex- 
penses ; some twelve or fifteen or more were present, and subscriptions were taken 
up, amounting to $2,500 that evening ; after the meeting took place, I went 
around, in company with Mr. Cowden, among some of Opdyke's friends ; I think 
we two were the only persons engaged in collecting funds ; we" called on Mr. Barney 
to know what amount might be expected from the Custom-house, and he said that 
notes had already been sent to most of the employes ; and many had sent in their 
contributions, and we might probably rely on from $10,000 to $12,000 from the 
Custom-house ; I reported that to Opdyke. 

Q. State what passed between you and Mr. Opdyke ? (Objected to ; excluded.) 

Q. Did you afterwards receive any money from Mr. Barney ? A. I received two 
checks— one for $5,000 and the other $1,482 ; I think they were payable to my 
order, and that I indorsed them both to Mr. Opdyke ; he had previously advanced 
about $9,000, which passed through my hands ; I think he expended ^altogether 
near $20,000 for his election ; I can only state from what I have heard, whether 
other sums came through the custom-house. 

Q. During all that time did you hear any intimation from any quarter that 
there had been any arrangement between Opdyke and Andrews or anybody else to 
get a certain sum of money from the Custom-house ? (Objected to ; excluded.) 

Gross-examined —Q,. What originated this meeting at your house ? A. I had 
conversation with two or three gentlemen on the subject, and with Mr. Opdyke 
also ; he, however, was not present at my house ; we collected from the Custom- , 
house about $6,482, and I collected myself from friends over $2,500, making over 
$9,000 in all ; the idea of going to the Custom-house originated among some of the 
friends, possibly with Mr. Opdyke himself ; I think Cowden and I went the day 
after the meeting to the Custom-house in a carriage ; I did not get the money from 
the Custom-house for some time after I had paid out the money ; I first called on 
Mr. Barney and he said that the notices had been sent out, and Mr. Palmer had 
charge of them ; I went up into Palmer's office, and there I saw Andrews. 

Q. Did not Mr. Barney suggest to you to see Andrews? A. I do not think he 
did ; I have no recollection of it ; I will state that I understood Mr. Barney to say 
it was customary to make assessments, and they were coming in pretty well ; I 
think he did not approve of the plan himself, but the party seemed to require it, 
and be submitted ; I think I inquired how soon the money could be received, and 
he said in a few days. 

Q. Can you give the dates of those checks ? A. I made an account at the time, 
and I see that the last check was received, I think, on the 7th of January, and the 
$5,000 check appears with no date opposite, but is under the date of December 2 ; 
the whole sum was received after the election (December 4) ; I found there was a 
balance due me of some $942, and I sent this account to Opdyke with the vouchers, 
and he sent me his check for the amount, which I had expended over what I had 
received ; after that, on the 7th of January, Barney sent me the further check of 
$1,480, which I paid over to Opdyke. 

Q. Did you see Barney and Opdyke together after the election when this mat- 
ter was spoken of ? A. I saw him after the election, but I think I never saw him 
in the presence of Opdyke in regard to this money. 

Q. Did Opdy^ce ever tell you anything that passed between him and Barney on 
the subject of the short collection ? A. t talked with Opdyke frequently about the 
amount to be received from Barney about the time of the election, and I think I 
talked with him before he went there ; he had not told me anything about the 
amount to be received from the Custom-house, but spoke of collecting money from 
the employes ; after my interview with Barney, I communicated the result of it to 



> 



108 

Opdyke, and told him the amount to be expected; Opdyke said that would help 
him out very nicely. 

Q. Subsequently, did you have any conversation with Opdyke in regard to the 
collection being less than he expected ? A. I think I did af ber the settlement of 
this account ; there was not much said, except that he paid the difference, what- 
ever it was, in the amount expended ; he expressed the same opinion that I did, 
that I did not get as much from Barney as he had promised ; he thought the same 
thing, and expressed his disappointment at Barney's having promised $10,000 or 
$12,000, and his having received no more than he did ; he did not state what he 
received ; I got only the $6,000. 

Q. How do you know that Opdyke spent $20,000 ? A. I so understood from 
him, during various conversations — $20,000, including what was collected from all 
sources ; I saw him pay money out of his own pocket ; I can't say how much he 
paid out of his own pocket, but I presume it was the difference between what I 
collected and what he expended. 

Re-direct — ^The money I received was paid out to the various ward organizations, 
through vouchers ; I know that Opdyke paid money to the same, for printing, post- 
ing, &c. 

Re-cross— 1 saw the money paid by him in the Committee-room, to various per- 
sons representing the different wards, as they said. 

The Court here adjourned till Tuesday, January 3, 1865, at 10 o'clock. 

A Juror stated that he expected to have a blow-out, and would be unfit to be 
present on Tuesday ; he wanted another day. [Laughter.] 

The Court — Tou will have to postpone your blow-out till the following week. 

Adjourned to Tuesday, Januaiy 3. 



FOURTEENTH DAY. 

TUESDAY, JANUARY 3d, 1865. 

The trial of this case was resumed. 

TESTIMONY OF JOHN J. PHELPS. 

^ The plaintiff called John J. Phelps, a retired merchant of New York, who was 
aske4 if he had at any time been applied to by Mr. Morris Ketchum and his asso- 
ciate to join in the purchase of the Mariposa Estate. The defendant's counsel 
objected as irrelevant. Plaintiffs counsel proposed to show that the witness de- 
clined, for the purpose of showing that it was an enterprise so undesirable that very 
few could be persuaded to join in it, as evidence of good faith in those who under- 
took it. Allowed. 

Witness — Mr. Ketchum sent me a pamphlet explaining the advantages and 
capabilities of the Mariposa property ; he then called at my house, and said the 
property was offered at a certain price ; I cannot say what the price was ; I think 
General Fremont was to give one-quarter of his interest to the parties who would 
come forward and pay the debts ; I told him I would be one of the parties, provided 
the property could be got possession of ; there was no difficulty ; some of the parties 
demanded gold ; I made it a condition that certain parties who demanded $300,000 
or $400,000 should take pay in currency ; negotiations by telegraph were entered 
into, and the party declined to take currency ; I then said I would have nothing to 
do witli it, owing to this, and the complications and trouble growing out of it ; I 
considered it a very complicated affair. 

By the Court — Was your refusal based upon the complication and trouble or 
want of pecuniary value in the property ? A. Well, I thought it an exceedingly 
difficult thing to get hold of ; I did not change my opinion as to its value, but I 
thought the complieations reduced the value a good deal ; that it could not be well 
got hold of. 

Cross-examined — Q. Did you not understand the property to be ample security for 
the mortgage debt that would need to be raised upon it ? A.I did not know of any 






109 



mortgage ; I was to advance so much money — I think $200,000 or $300,000 ; there 
was no talk of a mortgage with me ; I supposed we were to take the position of the 
creditors by an assignment ; that we would have? to come in with a certain sum of 
money, and take the place of the creditors ; there was nothing of a stock company 
mentioned to me. 

Q. Were you offered one-fifth of $2,500,000 of stock? A. No, sir. 

Q. What was the aidvantage held out to you for your coming iu ? A. The mere 
value of the property, with the incumbrances removed ; that it might be improved 
to advantage. 

Q. What share were you to have of the one-fourth to be devoted to that pur- 
pose ? A. An equal share with Mr. Ketohum and Mr. Opdyke and Hoey — one- 
fourth of the one-quarter ; 1 think these proposals were made to me some time last 
winter. 

Q. You are pretty actively employed with your capital and means in operations 
that seem satisfactory to you ? A. No ; I canirot say I am ; I keep it invested — not 
in speculations. 

Q. Did you regard this as a speculation if you had gone into it ? A. I do not 
know what I should call it ; I probably should have considered it as a good invest- 
ment if the debts were paid. 

Q. You did not consider there was much risk of the money you should put in ? 
A. I thought there was a good deal of risk ; there was a great deal of difficulty in 
getting possession ; the property was to be sold within a week, and immediate steps 
had to be taken ; it was a great way off, and there was difficulty to get attendance ; 
the price was the payment of the lien upon it ; uiy impression is that $1,200,000 
was to be paid in money without much delay ; I suppose we were to take the 
place of creditors, and to receive the contingent advantage of the \ of General 
Fremont's fth. 

Re-direct — Were you not mistaken in saying J of f ? Was it not \ of the whole 
estate to come out of General Fremont's 6-8 ? A. That may be. 

Q. Did you not understand you were to have ^ of a bonus for going into this 
operation ? A. Yes ; I understood it was to be \ over and above the debts, and I 
was to have one-fourth of that. 

GEORGE RUSHER CALLED. 

Geokge RtrsHER, of Brooklyn, doing business at No. 16 Beekman street, was 
called to prove that he knew the general reputation of Henry D. Stover ; that his 
reputation for truth was very bad, and he did not think he would believe him under 
oath. 

TESTIMONY OF J. B. WARING. 

J. B. Waring, of No. 312 West Twentj'-fourth street, a machinist, was sworn. 
He testified that he was acquainted with gun machinery ; that from December, 
1862, to July, 1863, there was an advance in the price of machinery of from 25 to 50 
per cent. ; he had occasion to inquire during that period, and was deterred from 
piu'chasing for other parties by the increase in price ; iron had increased from 30 to 
50 per cent., and labor 20 per cent. 

Q. Is machinery rendered more or less valuable by being used two or there months? 
A. To the owners or those using it, machinery is increased in value by a few 
months use ; it runs more easily ; in making tools there is considerable breakage, 
and in using tools there is very considerable loss from breakage and wear, and in 
gun machinery the tools mostly used are milling tools, and they require tQ be ac- 
curately made and kept in proper shape. 

Cross-examined — I am thirty years old ; I have worked on silk and gun ma- 
chinery, making gun-sights; was brought up to the business of machinist; I at- 
tempted to buy milling machines in December, 1868, and then ascertained the price, 
which was from S200 to $500 ; I also tried to buy in Jime, 1863, but prices had 
gone up and I did not buy ; I went to Worcester and Hartford for that purpose. 

TESTIMONY OF JOHN A. SCHENCK. 
John A. Sohenck called by plaintiff — I have been a machinist 80 years ; I have 



no 

made a few gun machines ; machinery, iron and labor advanced in price from De- 
cemher, 1862, to July, 1863, from 20 to 50 per cent. ' 

Cross-examined — Material has been advancing in price since July, 1863 ; I now 
pay 10 and 12 cents a pound for the same things that I bought for 4^ in 1863 ; I 
should not think that the wear of tools in a gun factory would be more than 10 
per cent, without regard to replenishing. 

TESTIMONY OF WILLIAM H. AEMSTEONG. 

William H. Akmstkong called by plaintiff— I am a lawyer ; in 1863 I was pri- 
vate secretary to the Mayor ; I assisted in the correspondence in the office ; a record 
was kept of official letters, and some important proclamations ; (book produced ;) 
on the 18th of July, 1863, a communication was addressed to Thomas C. Acton, 
President of the Board of Police Commissioners ; I have no doubt it was sent ; 
(communication offered in evidence ; objected to as too remote from any issue.) 

Mr . Fi ELD said that the counsel in his opening charged that Mr. Opdyke connived 
at the desti'uction of the armory. 

Counsel for the defendant denied that such charge was made. 

Mb. Field said that questions were put to the witnesses with the view of show- 
ing that fact. 

The Court allowed the record to be read. 

Witness then read communication to Mr. Acton, also one to G-ov. Seymour, 
one to Gen. Wool, one to Gen. Sanford, and one to Admiral Paulding, on the day 
of the riot ; also telegrams to Gov. Seymour and Secretary Stanton. 

TESTIMONY OF HERVEY K. SHELDON. 

Hbrvey K. Sheldon, being called by plaintiff to testify to the character of Mr. 
Stover, said that his general character was pretty bad ; he had but slight acquaint- 
ance with him and could not say as to his character for truth an d veracity ; from 
his general character I would not believe him under oath. 

TESTIMONY OF CHARLES E. JENKINS. 
Charles E. Jenkins called by plaintiff — I am of the law firm of Jenkins, Op- 
dyke & Ackerman ; I sent out the commission to examine the Secretary of the 
Navy ; I have received several letters from Mr. Brown, the commissioner at Wash- 
ington, informing me that the Secretary had referred the question to the President, 
and the President to the Attorney-General ; I received a telegram yesterday saying 
that he hoped to have a favorable answer this morning ; I have telegraphed back 
to execute the commission if possible. (The object of the commission is to get the 
record of an alleged conviction of Mr, Stover of some criminal offense.) 

TESTIMONY OF GEORGE OPDYKE. 

George Opdyke, sworn examined by Mr. Field : Q. When and how did you 
become connected with the armory in question ? A. My first connection with it was 
under a contract made in the name of Farlee on one side and the patentees on 
the other, dated December 18, 1861, Mr. Farlee combining the interest of McNeil 
and myself ; there had been a previous contract between the patentees and McNeil 
in the name of Hendrickson, dated December 13, 1861 ; the contract with Farlee 
was five days later ; it was to manufacture 10,000 Gibbs's breach-loading carbines 
for the Government ; after McNeil had obtained the contract in the name of his 
friend Hendrickson, he, Farlee and myself had conferences with regard to takihg 
that contract, and to making a coincident contract with Marston, the gun manu- 
facturer, to produce the arms for us. 

Q. What was the arrangement between you, Farlefe and McNeil ? A. The dis- 
tinct understanding between us 'was that after we had agreed upon the 
terms first with the patentees and secondly with the manufacturer, Marston, with 
the former at $21.50 and the latter at $17.50, leaving a profit on the two contracts 
of $4 per gun, McNeil should have $1.70, Farlee 60 cents, and myself $1.70. _ 

Q. What was said and done between you ? A. McNeil informed us that in the 
obtainment of this contract he had made an advajice of $7,500, which was to be 
repaid out of the first guns delivered, and he asked that I advance one-half or re- 






HI 

imburse him one-half ; he had given $5,000 in money and a draft on Hendrickson 

for $2,500, and he asked me to pay on the acceptance, when due, $1,250, and make up 
the one-half, which would be $3,750 ; then in making the terms with Marston, he 
required an advance of $5,000 ; so it was,agreed that McNeil should advance one- 
half and I the other ; that Farlee should attend to making up all the papers, bring 
a lawyer, and they should be in his name ; that he should take all the trouble of 
the contracts off our hands, to be made$in his name. 

Q. Was there any other advances between you and McNeil at that time agreed 
upon or contemplated ? A . That was the only advance contemplated ; Marston 
said it was all he should require ; it has appeared from the testimony of Mr. Jones 
that McNeil asked that Jones be a party ; I peremptorily refused, and said, we have 
nothing whatever to do with it ; and about the time the thing was consummated, 
McNeil informed me, for the iirst time, having previously stated that he had money 
enough to advance half that amount, but not the whole ; that this money was his 
wife's, and he desired that the interest should be considered in her name ; I don't 
think I asked him if he had judgments over him, but I inferred so froni this in- 
formation ; had I known that at the time the negotiation began, I should never 
have gone into a joint interest with him. (Objected to, and excluded.) 

Q. After the first arrangement with Marston, were any, and if so, what advances 
made by you to him ? A. Large advances were subsequently made to Marston ; he 
had previously made guns mainly, if not exclusively, by hand, and was very much 
mistaken in the amount of capital required for making them by machinery ; he 
called very rapidly for further advances until the amoifnt had perhaps doubled ; I 
refused to go further on what I deemed insufficient security in a business with 
which I was not familiar, and known to be hazardous, unless the contr ict was 
changed ; he very cheerfully assented, and we made a new'one, reducing the price 
of the gun to $17, on condition of my advancing $15,000 ; I went on and advanced 
perhaps double that amount ; I then again refused to go on, fearing that.under his 
management the time of the contract might expire, and we won Id have the guns 
on our hands ; I questioned him very closely about the time required, and he gave 
me assurance that with more money he would be able to get them out ; I then 
agreed to advance $40,000 or $45,000 on condition that he would annul the con- 
tract and make the guns for $16.50. McNeil also agreed to abate 25cents from his 
interest. I went on until my advances reached nearly S70i000 ; the guns were not 
completed, and we became fearful that Marston would not be able to execute the 
contract in time ; we therefore deemed it important that some change should be 
made. I asked Marston to find some other capitalist to take my place ; he did not 
— perhaps could not find one ; then I asked him, as an alternative, to sell the pro- 
perty to us : that if I should foreclose my chattel mortgage, the property should 
be sold to parties not engaged in manufacturing that gun ; the machinery might 
bring very near its value, but the tools would bring very much less, and it might 
be ruinous and I might fail to get back my money ; Mr. Farlee had gone around 
and consulted different experts in the business, and we were satisfied that with pro- 
per management the guns could be made at a profit ; so rather than injure Mr. 
Marstoh and sacrifice any money ourselves, we agreed to purchase him out at a fair 
valuation of the property ; thereupon appraisers were chosen, their decision not to 
be final, but if both were satisfied with it the sale was to be consummated. 

Q. What was the state of the contract at that time? A. The profit was $5 per" 
gun, of which Farlee was to get 60 cents, McNeil $1.45, and the balance was to come 
to me. The appraisement was made and McNeil, Farlee and myself examined it 
carefully ; some of the items struck us as being too high, but Colby and Knowlton 
the appraisers, assured us that it was right, and we finally agreed to accept the 
valuation and make the purchase ; the payments were made by canceling the notes 
given by Marston to McNeil, $2,500, and to me amounting to'nearly $70,000, and 
to pay a list of indebtedness, representing property on the premises not otherwise 
inventoried, amounting to $16,000 ; McNeil being apparently more anxious than 
others to consummate the purchase, agreed without my knowledge to pay $2,000 
in addition ; Farlee and I claimed certain deductions for rent, coal, &c. , and it was 
finally compromised by this agreement of McNeil ; Marston afterwards told me 
what he had done, and it was accompanied with a condition that I should dis- 



112 

count the note at 4 or 6 months, which I agreed to do, and the sale was consum- 
mated. 

Q. By whom was the purchase made? A. It was made in the na me of Farlee 
in the joint interest of himself, McNeil apd myself. 

Q . After that purchase who carried on the business ? A. Mr. Farlee was put in 
charge, and we employed as foreman Mr. Knowlton, who assured us that he would 
be able to finish up the equipment and tools, and turn out finished guns in time to 
execute the contract ; he seemed to be an energetic man and that was one of the 
reasons we were led to make the purchase ; Knowlton remained until about the 1st 
of February, 1863 ; he failed to get on as rapidly as he promised and we had some 
intimations that he was in collusion with some of the sub-contractors, making a 
commission on their contracts ; I never knew whether it was true ; McNeil said it 
was certainly so ; at all events it was sufficient to shake our confidence in him to- 
gether with his want of success ; so we got another man, Mr. Keene, who proved 
to be a capital workman, very energetic and very faithful ; he went on and early in 
May began to turn out guns, two or three a day, and increasing the number from 
day to day till it reached at the time of the fire 50 per day. 

Q. How much were you at the-armory ? A. I iisually looked in about twice a 
week on my way down to the Mayor's office ; I would question Keene .very closely 
about the progress and make such observations as would occur to a mere layman 
not acquainted with machinery or tools ; I saw the changes and was satisfied with 
the progress. 

Q. On the 13th of July, 1863, what was the condition of the armory as regards 
prosperity or otherwise ? A. At that time we were very well satisfied with its con- 
dition ; the works were finished and the product quite as large as we had expected. 
Mr. Keene said that some few machines and tools were required to bring it to its 
ultimate capacity, and he believed from that time forward he could produce 50 guns 
a day at a very fair profit ; we were very much encouraged, so much so that some 
weeks previous to the destruction I suggested to my son-in-law and one of my sons, 
who had mechanical taste, that if they would take up the business I would become a" 
, special partner. 

Q. Did you make any estimate of the pi'ofit you expected to make out of it ? A. 
Having nearly $200,000 invested in it, according to my habit as a business man, I 
looked after my interest, and obtained all the information I could from the most 
trustworthy sources, from the superintendent and employes, and arrived at the con- 
clusion (objected to) that from that time we could 'make from $4 to $5 a gun clear 
of the royalty ; I took a good deal of pains to ascertain the facts, and found as I 
believed, that theguu was one that would be very desirable, not only for the war, 
but for general sale at the West for men on horseback, 

Q. Look at that statement (printed) of the account of the profit and loss on the 
armory, as it appeared when the claim was presented to the Board of Supervisors, 
and also as the matter was finallv closed, and say if it is correct. A. Those two 
accounts are correct ; the first was not made up in this precise form prior to the 
presentation of the claim ; this is more accurate, being revised ; the result of the 
last one is a balance against the concern of $1,555 34 ; the proceeds of the auction 
sale of debris do not appear here, they having been applied to the payment of debts 
which do not appear here ; I have only Farlee's statement for that. 

Q. Tell the jury whether in the course of the riots there was any design on your 
part to have your armory destroyed ? A. Not the slightest. 

Q. You omitted nothing and did nothing with that view ? A. Nothing what- 
ever. 

Q. What did you do to suppress the riot and protect the property of citizens ? 
A. I arrived at the Mayor's office on the morning of the 13th, about 10^ o'clock ; 
I had been there not more than fifteen minutes before a messenger arrived stating 
that there was a serious riot in the upper par t of the city ; in about five minutes 
more another messenger came, and said that they were demolishing the Provost- 
Marshal's office in the upper part of the town ; that the police had been driven 
back, and Superintendent Kennedy was very seriously injured, and that they had 
set fire to the premises ; thereupon I at once addressed a note to the President of 
the Police Commissioners, also to General Sandford, and another, soon after, to Gen- 



//* 



t? 



113 

eralWool ; General Sandford came over, and after some conversation on the de- 
fenseless condition of the city, in consequence of the regiments having been sent to 
Pennsylvania to repel the invasion, said he would do the best he could ; we mu- 
tually agreed that it was best it should be done immediately, that the only way to 
put down the riot was to meet it in its inception with rigor, and to use no blank 
cartridges ; he at once went about the business ; very soon Major-Gene ral Wool 
came in, and he at once coincided with me, ordered out what troops he had in the 
vicinity, and joined me in efforts to collect them from the adjoining country ; we 
sent telegrams besides those read here this morning ; we sent a messenger to the 
Governor of New Jersey, understanding that there were regiments at Newark ; we 
6ent to West Point, to Utica, to Rochester, and to the eastward for a regiment that 
had just pasE^ed through this city ; meanwhile Commissioner Acton came into my 
office some twenty minutes after General Wool had left ; I asked him to join in the 
requisition that I had made for the militia, telling him that it was desirable to 
have all possible unity of action ; he declined, thinking, I presume, that the 
proper time had not arrived ; I learned afterwards, that in the afternoon he did 
join in the requisition ; about the time General Sandford was leaving my office 
Farlee came in and said that he had come down from the armory in the morning, 
and while down town liad heard of the riot, and he thought the armory would be 
very likely to be attacked for the purpose of getting guns, in all of which we coin- 
cided ; he then asked me if I would give him official authority to arm the workmen ; 
I told him I had no doubt at all of the propriety, but as General Wool was there I 
would consult him, which I did, and he coincided ; so I gave him orders to arm his 
men, and told him to shoot down any one who attempted to break in, and to de- 
fend it to the last ; some time in the afternoon, Farlee returned and stated that he 
had found the building in the possession of 25 or 30 policemen, that he had put 
arms and cartridges in their hands, and they felt entire confidence that they could 
protect the premises ; I felt very much relieved, supposing that with the workmen 
and the police the premises were secure, the first attack having been repulsed ; 
about four o'clock, having nothing more to detain me at the office. General Wool 
having his headquarters at the St. Nicholas, General Sandford having gone to de- 
fend the arsenal on the wbst side of town, and the Police Commissioners' office be- 
ing near the St. Nicholas, at the suggestion of the Sheriflf, made a third time, I 
went to the St. Nicholas, arriving there a little after four. 

Q. Was Gov. Seymour there ? A. Gov. Seymour was not in the city till the 
next day at 11 or 12 o'clock ; all this time the alarm was very general ; hundreds 
came to me saying that their premises were threatened ; having no force to pro- 
tect them, I stated to them very frankly that we had not police and military to 
meet the rioters actuallj'' at work, and it was therefore impossible to defend prem- 
ises only threatened ; about this time notices began to come in demanding protection 
of property threatened, with a view to secure legal rights in case of destruction ; 
these notices I sent to the Police Commissioners, who had joint control of the po- 
lice and military forces ; Gen. Wool was going to place Col. Nugent in command 
under him ; I recommended Gen . Brown as an officer of more experience and ca- 
pacity, and at the request of the Police Commissioners he was stationed at their 
headquarters to co-operate with them, being under the direction of Gen. Wool, who 
put himself under my direction ; at the same time I went and asked the Police 
Commissioners to arm the Police ; up to 8 or 10 o'clock that evening we had 
failed to get the State militia under arms to the extent of more than 700 or 800 
men. and there was some uncertainty whether they would be trustworthy ; the 
thing threatening to assume a party aspect, the Commissioners felt unwilling to 
arm the police without the sanction of the Governor ; I told them if they were 
unwilling to take the responsibility I would make the requisition and provide 
them with arms ; they were armed sufficiently at the arsenal ; they declined, how- 
ever, to do it during the afternoon ; Mr. Jones has testified that he came to me 
and notified me that the Police had been withdrawn ; I assume that he is right, 
though I have no recollection of it ; but I do know that some time in the after- 
noon Mr. Brooks, who felt a great personal interest in the matter in view of his 
royalty, told me that the Police had been withdrawn, and I learned from other 
sources that they had concentrated at headquarters ready to be sent out ; I con- 



114 

suited with G-eneral Wool whether it was possible to detail any force to defend' 
the armory ; he had none, and Gen. Brown was co-operating with the Police 
Commissioners; Brooks said there was artillery on Governor's Island, and if he 
could get it he would guarantee to defend the armory ; Gen. Wool gave the re- 
quisition, and Brooks went and got it ; I learned that he arrived at the armory 
with his artillery after it had been fired ; every possible effort was made by me to 
protect the property of every citizen ; of course I make no distinction between 
my own and the property of others ; meanwhile, during the afternoon my own 
dwelling was attacked and there was no police force to protect it, but the elo- 
quence of some of our leaing citizens dissuaded the mob and they went away ; 
next morning it was again attacked ; no police were there to defend it ; I mention 
this because it has been stated that a force was sent there ; my wife and youngest 
son were driven out, and made their escape through the back door into the base- 
ment of a neighbor's house ; they got into a carriage, were chased by the mob, 
who shouted murder after them, and came down to where I was. 

Q. What did you have to do with the claim for damages, upon what principle 
was it made, and what did you think of it ? A There was some debris left, and 
my first cave was in regard to that ; my booli-keeper, Paret, said the remains would 
probably bring something, and it was important to gather them, or the boys would 
carry them away ; so I went to the Comptroller and got his consent, and then au- 
thorized Paret to dispose of the debris ; all the books being destroyed except the 
cash-book, in conferring with Mr. Farlee, and. I think, Mr. Keene, as to how it would 
be possible to get a correct inventory of such a multiplicity of articles and mate- 
rials ; we both agreed that it would be impossible to even approximate accurately ; 
the suggestion occurred to me whether it would be properto present the aggregate 
of the investment and liabilities, and deduct , therefrom the receipts, waiving any 
claim for profit ;' but it at once occurred to me that that would not be a legal form, 
as the city authorities might assume that we had been doing a losing business, and 
would not know what property we had actually lost ; casting about as to the best 
method, I having a large interest, being Mayor of the city, and my situation being 
a delicate and embarrassing one, I was anxious to make the claim as accurate as 
possible ; Mr. Jones came into the office and suggested that the most feasible and 
practicable method would be to charge for the machinery and tools as they existed, 
and for the guus at the contract price less the cost to finish them ; he gave me no 
figuring ; he had a blank fonn in his hand — so many guns at such a price, less so 
much for finishing — or something in that way ; the interview was very short, and 
the conversation very brief. 

Q. Did he make a statement of the expenditures and receipts, and the claims of 
Farlee and McNeil and others? A. Nothing of that sort, no remarks whatever with 
regard to the rights of outsiders, merely as being a proper method of malring out the 
account, I told him I would consider the matter and he might make the suggestion 
to Farlee and we would consider it ; I afterwards saw Farlee and we carefully con- 
sidered the question, and we decided that that was a proper, legal and correct method 
of presenting the claim ; that if any profits had been made we were entitled to it ; 
we hoped there had been some ; 'vye could not tell ; I asked Farlee to confer with 
Keene to know whether we could get an accurate account made in that foi"m ; he 
did so with Keene and the book-keeper.-and'they thought they had sufficient data 
to get it up accurately in that way ; I told Farlee that if they felt confident of it, 
to authorize them to go on, and I enjoined the strictest accuracy, and that whenever 
a doubt existf'd to give the city the benefit of it ; not to charge a single item but 
what the}' were confident was there ; they were some weeks, I think, completing it, 
certainly ten days to two weeks. 

Q. Did you believe that to be a fair, honest, and true mode of making out the 
claim ? (Objected to — allowed — exception ) A. I believed it to be a fair, just, and 
honest mode, and a just, fair and honest claim, made out less than the actual value 
of the property lost. 

Q. Have vou any doubt about it? A. Not the slightest— never had. 

Q. Was there any concealment ? A. No. sir. (Objected to.) 

Q. When this claim was being made up, was anything said at any time about 
the increased price of machinery, or its subsequent appreciation in value ? A. Yes. 



'J^ 



115 



It was represented to me by Mr. Farlee and Mr. Keene that material had advanced 
in price since the time this purchase was made, they felt that we were entitled to 
replace the same machinery and tools there,.and they urged that it be charged at its 
then market value— what it would cost to replace it. I acquiesced in the justice of 
that form ; but I felt it was a claim in which I had a large interest, and as I was 
one of the city officials, I would prefer to waive that portion of my right, and pijt 
it in at cost so as to prevent any future criticism. This claim was presented to the 
Comptroller, then to the Supervisors. 

Q. Had you any conference with any of the Supervisors, in relation to this 
claim? A. The only one I recollect speaking to prior to the final consideration was 
with Mr. Purdy, once, possibly twice in my office ; it was after the claim was ex- 
amined by Mr. Blunt and before it was acted upon ; I said to Mr. Purdy that the 
claim which had been presented in Mr. Farlee'sname, and in which I was interested, 
was a large amount of money to lay out of, and if he could do anything in having 
it acted upon, I should be obliged, without doing injustice to the claims of others ; 
that I wished no priority in its consideration, but if anything could be done to ex- 
amine it I would be gratified ; I never had any conversation mthany supervisor in 
relatio i to it except him, and with him only, as to the time. 

Q. When the matter came up before the committee, finally, state whether you 
were sent for. A. I had been frequently sent for by the committee to come up and 
be present at the examoiation of various claims ; I was sent for on this occasion 
more than once ; when I reiched the room some small claim was under considera- 
tion ; then the claim of Mr. Wakeman was taken up ; that was gone- through with 
after various propositions in regard to reduction, and a liberal abatement made ; 
then Mr. Farlee' s was taken up, and very soon after that was taken in hands, I 
said to the Supervisor : " Here is a claim in which I have an interest, and I feel it 
is indelicate for me to be present; but before leaving I will say this : I enjoined 
Mr. Farlee and the others who were making up tlie claim to be as accurate as pos- 
sible, and to make the claims just ; it is for you to judge whether they have done so 
or not ; I have no knowledge of its details, but I notice by your proceedings that 
your rule is to treat these claims with a great deal of fieedom, and I desire you to 
treat this with the same freedom ; I desire no forbearance because I am inte' 
rested : I wish you to treat it with the same rigor and freedom as the. rest ;" I was 
not there on the action of the coinmittee ; I was not at the meeting of the Super- 
visors. • • 

Q. Afterward the resolution came to you with 49 other claims for your approval ? 
A. Yes, fJir ; may I state my reason for approving? It cims, I believe, in connec- 
tipn with some 40 odd others, all in one resolution ; I feared it might possibly mis-" 
represent me to approve a claim in which I had an interest myself ; I felt, on the 
other hand, a very clear conviction that the claim, instead of being too large, was 
too small ; there were no good grounds for cutting it down ; being convinced it 
was right, and being unwilling to delay other claims for ten days in getting their 
funds, I felt it was my duty to sign it together with the others. 

Bt the Court — Did you suppose that you could not refuse your assent to this 
claim and allow the others? A. That I believe was the case. 

After the claim was paid I had a settlement with Brooks, the agent of the 
pat ntee ; Mr. Farlee nformed me that Mr. Brooks claimed the whole of the 
royalty ■ n the 6,000 unfi lished guns, and threatened to prosecute his claim unless 
it was paid ; I had a conference wjth Mr. Brooks at my house ; I ins-sted that 
equity demanded a reduction ; he offered to settle with the payment of an additional 
$10,000, having already received about $11,000, the claimbeing about $26,000 ; 
being an abatement of $10,000 ; I offered to settle with him by giving him $5,000 
more, which ^uld make an abatement on the whole of $10,000 ; this he refused, 
and left with the declaration that he would prosecute unless we paid him $5,000 
more ; subsequently $5,000 was paid him ; the settlement with Remington was 
as it appears on the account. 

Q. State whether you made any offer to McNeil, and what it was. A. After 
the City had settled the claim, and we had settled with the patentees, McNeil 
came to the Mayor's office and demanded a settlement with me ; I told him I was 
prepared to settle with him just as soon as the account could be examined and 



adiusted ; lie claimed $2 a gun ; I told him he had no such claim at all, that our 
interest was a joint one ; that if there was a profit he was entitled to his propor- 
tion ; that we had obtained from the City less than we were entitled to ; that he 
was ready to settle with him on the hasis of returning to, him all the capital I 
had put in, with interest on it, and all the profits ; that on a rough estimate the 
profits would net perhaps $2,0p0 ; he flew into a violent passion, and said he 
Would make no such settlement at all ; that he must have $20,000, which was 
the amount he claimed ; I endeavored to pacify him ; he was very anxious that 
Mr. Williamson should have something to do in the matter ; we met at my house 
with Mr. Williamson ; I repeated my offer, which he declined, and subsequently 
a suit was commenced in the name of his wife. 

Q . Did McNeil say to you that the claim against the city was a great deal 
too small ? A. He did ; he said that the claim was too small ; that it should be 
m.uch larger ; that they were omitting many things ; afterwards met Mr. Hendrick- 
son, the assignee ; settled with him for $3,900 and odd ; a check of $1,500 had 
been discovered by Mr. Farlee, which it is supposed had been omitted from the ad- 
vances by me, which was added to the profits ; Mr. Heiidrickson settled with me 
on the same basis I had proposed to McNeil ; I said we should have a release from 
McNeil as well as his wife, as he had sometimes claimed to be part owner, some- 
times sole owner ; Mr. Hendrickson said he would obtain a power of attorney to 
sign a release ; then he thought there might be difficulty ; either he or Mr . Wil- 
liamson said it was not necessary that McNeil should know for what purpose the 
power of attorney was needed ; I did not propose that ; I insisted on having the 
release of McNeil as well as Mrs. McNeil ; they obtained it in their own manner, 
with which I had nothing to do. -^ 

Q. The libel says, " Opdyke disclaimed any interest in the gun claim." Did you 
before the Supervisors, or anywhere else, to any human being, disclaim any interest 
in the gun claim ? A. I did not. 

Q . Did you or not sit in the Committee investigating the claim of your son,-in- 
law ? A. No, I left, as I stated. 

Q. Was the $25,000 received from the government forgotten in making up this 
claim against the city ? A. No, sir, not forgotten by myself or by any others mak- 
ing up the claim ; it was not put in the claim against the city because it ought not ; 
but it appears on the cash book and general assets of receipts and disbursements. 

Q. Was any claim made against the city for the guns delivered to the govern- 
ment ? A. None whatever ; or for the material or expenditure on these guns. 

Q. In presenting the claim to the Supervisors did you declare that you had no 
pecuniary interest in it or not ? A. I did not. 

Q. I will read again, ' ' To qualify himself to act impartially and honestly for the 
tax-payers of New York, he disclaims being interested in the gun claim." Did you 
disclaim being interested in the gun claim or not ? A. I did not. 

Q. Then again, " A partner after calling the ex-mayor a swindler, prosecutes for 
a share of the profits, and in his defense, Opdyke made oath that he owns the ■ 
largest share of the contracts which before the claim was paid he had repudiated." 
Had yon ever made any such repudiation ? A. No. 

Q. Had you ever repudiated having an interest in that claim ? 

The Court — It is most clear he never did. 

Q. Will you state whether or not you repudiated having an interest in the gun 
claim ? A. I never did . 

Q. Tell the Jury all about this story they have got up about your having sold 
the office of Surveyor to the Port ? A. I certainly never sold the office of Surveyor. 

Q. Have you ever had any conversation with McNeil about getting Mr. An- 
drews appointed Surveyor ? A. None within my recollection whatever. 

Q. Did you ever have any conversation with Williamson about gfetting Mr.'An- 
drews appointed as Surveyor ? A. None within my recbllection. 

By tiik Couet — You may state whether you ever made such a bargain as stated 
by them or not? A. I never did. 

Q. Did McNeil ever say to you that Andrews would give, or cause to be collected 
from the Custom-House, $10,000 if you would go for Mr. Andrews for Surveyor of 
the Port of New York ? A. Never. 



4 . 



lit 

Q. Did you ever say to McNeil "Won't he cheat me ?" referring to Andrews ? 
A. I did not. 

Q. What were your relations with Mr. Andrews at the time he was appointed 
Surveyor ? A. They were friendly. - 

Q. How long had they been so ?• A. For nearly two years, our political relations 
existed, and had been very friendly during that time. 

Q. Will you state whether or not McNeil said to you, if you wanted anybody 
else to help do this — that is, make this arrangement with Andrews — you should 
pick your way, and they would go together ? A. I did not. 

Q. Did you ever pick or choose Mr . Amor J. Williamson for any such purpose ? 
A. I did not. 

Q. Did McNeil afterwards ask you if you had seen Mr. Williamson on that sub- 
ject? A. He did not. 

Q Did he ask you if things were satisfactory, and you said they were ? A. 
The whole of that is a sheer fabrication. 

Q. Did you ever tell McNeil that you would drop Mr. Stanton? A. Never. 

Q. Did you afterward meet McNeil in Washington, when he reminded you of 
any such transaction ? A. Never to the best of my recollection ; I never met him 
in Washington at all. 

Q. Will you tell m6 whether you met him and Mr. Andrews there ? A. I think 
I never met him at all. 

Q. You heard this story about meeting him in Washington, and being 
tapped on the shoulder ? A . That is like the other ; that is a sheer fabrication, 
the whole of it. 

Q. Did Williamson ever go on any such errand for you, to make any such 
arrangement, or be a witness to any arrangement with Mr. Andrews ? A. He has 
not so stated. 

Q. Did he ? A. No; sir ; not to my recollection ; perhaps, Mr. Field, I had 
better state my own recollection of these circumstances. 

Q. Did Williamson report to you at your store any conversation that he had 
with Andrews about your getting him appointed Surveyor of .the port of New York? 
A, He may have reported a conversation he had with Mr. Andrews, but not of that 
kind that was contained in his testimony. 

Q. Anything about your getting Mr. Andrews appointed Surveyor ? A. Noth- 
ing of the sort that I recollect ; I was going to tell you that many political inter- 
views between Williamson and myself, and McNeil and mysfilf, have taken place, 
and some of them might have had relation to the office of Surveyor of the port, 
possibly before, but certainly after the appointment ; I didn't charge my mind with 
all the details that occurred on such occasions, but this I know, that I iiever did, 
directly or indirectly, with Mr. Williamson or McNeil or Mr. Andrews, make any 
such ; I never did have a conversation with either of them that contemplated the 
selling of my influence in favor of Mr. Andrews for the consideration of his 
■ influence in raising money for the mayoralty election ; I would have had to change 
my nature entirely to do that. 

Q. Go on and state what you desired to state about your connection with that 
office. A. I and otliers had jointly recommended Henry B. Stanton, and there was 
another applicant advocated and recommended by others ; that was Mr. Wakeman ; 
it was understood the President favored Mr. Wakeman ; and the Secretary of the 
Treasury, in whose department this office was, was in favor of Mr. Stanton ; that 
controversy in relation to the appointment began immediately after the inaugura- 
tion of the President, and remained in that position until shortly before the ap- 
pointment of Mr. Andrews ; I met him, as he has stated, together with Mr. Ullmann 
and Mr. Brewer, and according to my memojy Dr. Price was with them also, but 
that may not have been so, in front of St. Paul's Church ; Mr. Andrews said to me, 
" I am going to be Surveyor of this port ;" that is the first intimation that I ever 
had that Mr. Andrews or his friends were applicants for that office \ I expressed 
satisfaction that a friend of mine was to have that place. '•■■•■' 

Q. What was said ? A.I said to Mr. Andrews, "I, as you know, have been a 
supporter, and arn, of Mr. Stanton for that appointment, but if he cannot get it, I 
shall be gratified that another friend of mine gets it ; it will be acceptable to me ;" 



118 

shortly after that I happened to meet Mr. Barney, and if it is competent to state 
the conversation which took place, I will state that I said I understood that Mr. 
Andrews has heen, or is to be appointed Sm'veyor of this Port ; he says, " Yes, I 
believe that is so," and he says, " I intended to have told you about this before, 
but I have not had an opportunity ; it is arranged that he shall have it as a com- 
promise candidate;" this was perhaps three or four days before the actual ap- 
pointment was made ; I never took any part in it, to the best of my recollection 
and belief, in his favor, but stood as one of those who had recommended and 
supported Mr. Stanton for that place. 

Q. Did you ever say or do anything to withdraw Mr. Stanton ? A. Accord- 
ing to the best of my knowledge and belief I am confident I did not. 

Q. Did you go to Washington to get Mr. Andrews appointed ? A. I did not ; 
to fortify my recollection I had the book at Willard's examined ; I believe I was 
not in Washington at all, and I am certain that it was not on that errand ; I 
never wrote a letter to any one for any such purpose ; the contribution at the 
Custom-house was set on foot after my nomination for mayor ; I have no recol- 
lection of ever asking Mr. Barney myself ; it may be that I suggested the propriety 
of setting on foot a contribution, it is very natural I should, but I have no recol- 
lection of it ; the day of the election Mr. Keyser came to me and said, ' ' The 
money that had been promised the Eepublican organization, of which he was 
treasurer, from the Custom-house, had not been collected in a form to make the 
payments; I advanced $2,000 ;" he said he would advance $1,000; I was told 
the Saturday preceding that the People's organization had failed toget the promised 
$3,000, and it -was represented that unless the money was advanced the organiza- 
tion could not be brought out to the polls, and we would lose their support ; I ad- 
vanced $3,000; and I advanced various other sums on organizations; my aggre- 
gate expenditure during the canvass being a little over $20,000, all of which I 
believe was legitimately used by the organizations in the city that supported me ; 
I got back $2,000 from Mr. Keyser, and $5,000 through Mr. Churchill, and in 
about a month $1,480, making the balance I was out of pocket the balance. 

Q. Did you ever have any conversation with Mr Andrews about collecting money 
at the Custom House ? A. If I ever had any with him, it was after my nomination ; 
I desire to state generally that I never had a pecuniary transaction with Mr. 
Andrews in my life ; I never dreamt of making any such bargain as selling my 
interest to him in return for his getting a collection in the Custom House, and it 
was not until he entered upon his ofloice that I had any interview with him in re- 
gard to the dislribution of his patronage ; I had previously supported Mr. Andrews 
for the office of United States District Attorney. 

Q. State what connection you had with the sale of articles to the Government ? 
A. They have all been stated by witnesses. 

Q. Did you ever " work in" at Philadelphia any blankets that were rejected in 
New York? A. I never did ; we had a contract for 25,000 pair of blankets, which 
we inspected as usual ; about 100 pair of these were rejected for different reasons, 
and were sold by us at private sale. 

The witness was examined in relation to the cloth purchased of Spaulding, out 
of which the 28,000 infantry coats were raade, and went Over the same subject as to 
the cloth not taking a good indigo blue ; owing to an error in transferring the con- 
tracts 4,000 coats too many were made, which were not accepted ; the firm lost over 
$7,000 by the whole transaction, and Mr. Smith $,5000. =" 

Q. Did you have any secret partnership for aimy cloth, blankets or gun contracts t 
A. Not secret ; Mr. Carhart has stated his connection with Opdyke & Co. ; in con- . 
sequence of delay in payment the capital had to be very large ; the profits were 
small and business vexatious ; the ne^t season we returned to our regular business, , 
and I have had no interest in any Government contract, direct or indirect, since, 
save in this armory, if it can be called a contract ; my individual interest wasabout 
ohe-third (34 per cent.) of the $172,000 made by Opdyke & Co. ; I never forestalled 
the market for^cloths required by the Government, and never attempted to do so ; 
there were a dozen ho,uses in the trade larger than ours. 

Q. Did you ever 'remind General Fremont that, when he ran for the Pres- 
idency, in 1856, he was weakefied by peoxmiary embarrassments? A. No, sir; I 
never had any political conversation with him, personal to himself. 



/St- 



119 



Q. Did you say that, as his friends intended to run him again, it would be well 
to put his affairs into better shape ? A.I never told him any such thing. 

The witness went into a statement in regard to the Mariposa matter — the same, 
in effect, with that given by General Fremont. There were negotiations in relation 
to the perfecting of title and ascertaining the amount of liens ; the whole affair was 
involved in almost inextricable confusion ; so doubtful were the advantages of the 
arrangement, even when finally consummated, that the witness declined to take the 
whole share (over one-third of the one-lourth of the estate) allotted to him, and 
one-fourth of his share was given to Mr, Crawford. 

Mk. Field read, in evidence, some telegrams passing between Ketchum, Op- 
dyke and Fremont, in New York, and Mr. floey when in California, 

TJie cross-examination of Mr . Opdyke was reserved till to-morrow. 

TESTIMONY OF FRANCIS C. CROSS. 

Francis C. Cross, called by the plaintiff', sworn — I reside in New York ; am 
dealing in machinery ; have been familiar with the prices of machinery, including 
milling machines ; in 1861 they were in great demand, from $175 to $600 ; in July, 
1863, there was such an advance that I could not make contracts ; this was worse 
in relation to milling machines than others, in consequence of gun contracts; 
the market advance on machinery from December, 1862, to July 1863, was 50 
per cent. ; a greater demand for gun machinery than any other ; it could be dis- 
posed of in workable order. I know Mr. Stover ; have dealt with him ; have heard 
his character for truth and vftacity spoken of ; never heard him spoken of other- 
wise than as a man lacking in vemcity; his general character for truth and veracity 
among those whom I have heard speak of him is bad ; I have heard twenty persons 
speak of him, and have avoided him on that account ; I would not believe him 
under oath. 

Cross-examined — (Mr. Henry D. Stovershown to witness) — I cannot swear him to 
be the Mr. Stover I have spoken of; he is somewhat changed ; I believe him to be 
the one ; the one I speak of was in Fort I^afayette. 

Adjourned to 11 o'clock to-morrow. 



FIFTEENTH DAY. 

WEDNESDAY, JANUARY 4TH, 1865. 

TESTIMONY OF MR. OPDYKE CONTINUED. 

Oeoege Opdyke cross-examined by Mr. Evarts — I came to this city in 1824 : have 
resided in New Orleans six years ; Cleveland, Ohio, two years, and for some years 
had my residence in New Jersey while engaged in business here ; returned here in 
1853 or 1854 ; have resided here since that time ; have had business here since about 
1841. 

Q. When first did you appear in political or public life ? A. I think I was a can- 
didate for the Assembly in 1857 or 1858 ; that was my first active connection with 
political life ; I was not then elected ; in the year following I was elected ; was in 
the Legislature one session, 1859 ; the ensuing autumn I became a candidate for 
Mayor of this city ; was a candidate for nomination for the Senate that same autumn ; 
but not nominated ; was not elected Mayor ; two years following, in 1861, I be- 
came a candidate for Mayor ; meantime, I think, some of my friends suggested my 
name to President Lincoln as a fit person for Secretary of the Treasury ; it was not 
of my volition ; I was suggested for the office of Collector of the Port, also, without 
any authority or Consent ; after my term of office for Mayor expired, I was not a 
candidate for any office, and hold no office now ; from the time of the election of 
Mr. Lincoln to my election as Mayor, I joined others in recommending persons to 
various offices ; I was in Washington during the inauguration, and two or three 
days subsequently, and occasionally visited Washington afterward; can't say how 
frequently from March, 1861, to 1862 ; I have no distinct recollection of the num- 



120 

ber of times, or the length of time I stayed ; I do not remember going in company 
with others, after the inauguration, in relation to appointments ; I went in relation 
to financial business ; with the Secretary of the Treasury and Navy I was on friend- 
ly, personal, and political relations ; so continued with Mr. Chase up to the time 
of his leaving office ; I have no recollection of going to Washington to influence 
appointments later than March, 1861 ; I may, while here, often have spoken in 
favor of some one ; I think after that there were very few places to fill ; I do not 
recollect my appointments to be made or urged ; my interviews in regard to finan- 
cial policy were with Secretary Chase, in company with others ; I also had a cor- 
respondeuce with him in regard to the best financial policy ; there was no special 
intimacy between us, but very friendly terms ; I have no distinct recollection of 
having exerted influence to have any one removed. 

Q. When in Washington did you exercise your influence to have Collector Bar- 
ney removed ? (Objected to — excluded) 

Q. When this factory was destroyed, what did you do toward ascertaining what 
there was in it that was burned up ? A.I had no personal superintendence ; I 
directed Mr. Farltie to take early and proper steps to ascertain and make out as cor- 
rectly as possible, through foreman and book-keeper, an inventory of what was 
lost ; I have no inventory save the claim presented to the city ; that was the ulti- 
mate result of the efforts to ascertain ; I asked Mr. Farlee to try and see if an in- 
ventory could be made up of the things that were in the factory when it was de- 
stroyed; finding that was impracticable, I conferred with him as to the propriety 
of making out the matter in the way it was ; an intermediate suggestion was to 
piake out total investments and deduct from it tlS total receipts ; the first plan 
proceeded no further than my directing Mr. Farlee to make out such a statement ; 
he thought it impracticable ; I have no recollection of any figures towards such a 
sch'-dule ; those in charge said it was impracticable, from the absence of books and 
papers which had been mainly destroyed, and multiplicity of articles from raw 
state to finished article ; those are all the difficulties I recollect ; then my mind 
turned to the plan of finding the advance, and outlays, and receipts, to show the 
amounts we were out of pocket by the transaction ; the means of making that com- 
putation I had a perfect record of, knowing how much I and McNeil had advanced ; 
if it had been presented in that form it would have been on the principle of return- 
ing to us the net balance of payments and liabilities over the receipts ; that plan 
was abandoned as an illegal method, and the authorities could not make a settle- 
ment on that basis ; do not recollect conferring with any on6 bnt Mr, Farlee on 
that subject. 

Q. After that was abandoned were you without a plan until Jones stepped into 
your office and suggested one ? A. We were still considering how we could best 
get an accurate' inventory of the property lost ; we had not hit on anything defi- 
nite, that I remember, until Jones made the suggestions ; I think it had not occur-, 
red to me ; it first came from him ; his suggestion only related to the carbines ;, 
so far as I remember, Jones did not give the figures ; he had no access to my ac- 
counts ; he was a man I had no confidence in ; a)l the advances do not appear in 
the cash-book ; during December and January, when I made advances of about 
$40,000, the cash-book shows only about S30,000, the balance having gone to pay 
Marston ; that should have gone in the books ; it enters into the sum stated as the 
amount paid Marston, but not entered into the sum claimed against the city for 
machinery, &c. ; Jones suggested the mode of charging the contract price of the 
guns, less the amount it would take to complete them ; that is the substance ; of 
my own knowledge I do not know that Mr. Jones had any interest in making this 
suggestion ; I do not tliink I asked him what advantage there would be in making 
up the claim in that way ; the plan he suggested struck me as a just and proper 
method ; that it would embrace not only the value of the articles, but the profits, 
if any, that were earned. 

Q. You say that mode would embrace all the profits as if the number of guns 
had been completed? (Objected to.) A. So far as those guns were concerned, it 
would, provided we had not allowed more than what was assumed to be the actual 
cost of completion ; there was 12^ per cent, allowed in excess of the actual cost of 
.corupjletion. 



/JJ 



121 



Q. That mode would include the materials in the guns, tlie labor spent on those 
materials, up to the stages to which they had gone — the royalty which would be 
payable on the guns, and the profits, if any, which' would come to the parties in- 
terested ? A. I think that is correct, so far as those guns are concerned, always 
abating 12^ per cent., which was allowed in excess of what was assumed to be the 
actual cost of finishing. ^ 

Q. What plan was there for selling out the property other than the carbines ? 
A. It was to make an inventory of the property itself, and the price was charged 
at the price it had cost the concern ; the plan did not include all the outlay ; it 
left out the current expenses of the establishment — rent, fuel, pay for Superintend- 
ent, clerk hire, &c. , and others that were not working on the particular contract ; 
it left out the tools that had been made and broken, or were foUnd inadequate, and 
others had to be made in their places ; Mr. Keene told me there were many parts 
of guns and small things which there were no means of ascertaining. 

Q Does the schedule profess to include any of the material that enters into the 
fabric of the guns? A. 1 think not ; I believe there is some steel. 

Q. Can you show in the cash-book or any other record of outlay for the 
purposes of this business and this factory, any sum for material, for tools and work, 
and labor on tools, and keeping up machinery, that is not in the schedule ? A. I 
have not particularly examined the cash-book, and cannot say what is there. 

Q. You have stated, I believe, on direct examination, that the cash-book con- 
tained a statement of all the outlay and all the receipts of cash in this business ? 
A. You misapprehend me ; I said the statement of profit and loss ccitains it all. 

Q. Will you point me to the entry in the cash-book which concerns or relates 
to the receipt of any money from the Government of the United States ? A. Here 
is one item on the Dr. side of cash-book, page 20 : '-Jane 29 — Cash Dr. to the 
United States G-overnment — received draft on Sul^-Treasury in New York, dcv^ed 
Washington, June 27, No. 264 — $15,379.50 ;" on the credit side, same page, is the 
entry : "" Cash Cr. by G. 0., loan amount, $15,379.50 ;" I would like to explain 
that. 

Q. What amount of outlay appears subsequent to July 13 ? A. The aggregate 
amount is over $6,000 or :|;7,000. 

Q. Can you state any greater difficulty in stating the material in the factory 
and the amount of labor that had been expended on this material in the unfinish- 
ed carbines, than in stating the amount necessary to complete them ? A. I cannot 
see any difficulty that would exist, greater in the one case than in the other. 

Q. You say you consider the principle on what the claim was made up just as 
fair against the city. Why would not giving the material in the factory and the 
labor expended on the unfinished carbines in the various stages, have been a pro- 
per mode? A. The armory had been in existence nineteen omnths ; was started 
for the exclusive purpose of producing Gibbs's breach-loading carbine ; all^the ex- 
penses for that time were made with a view of producing that result ; it required a 
large f>,mount of capital, employed in a hazardous business ; we had just arrived at 
the condition of producing the guns — were just ready to produce the article we de- 
signed when we started ; the time, money, labor, outlay, capital, ftnd hazard ex- 
pended during the nineteen months to produce the guns, was entitled to profit, if 
any were made, as far as we had gone ; it could not be expected that the manufac- 
turer who had changed the form of material from the raw to the finished article of 
utility, should forego whatever profit existed ; it would be entirely unjust ; we felt 
what we were entitled to was to replace the establishment in the position in which 
it was. 

Q. What was the difference between the result of this mode and that which you 
had rejected, except that this included profits as well as outlay ? A. That was the 
difference ; the one would be returning the capital simply — the other would em- 
brace the profits, if any were earned. 

Q. I understand you to have said that in this carbine account there is a compu- 
tation only for the 6,000 carbines, and not including any part of the 1,050 not de- 
livered. Will you show how there was omitted from the preceding schedule of 
machinery, tools, &c., which foots up $97,000, anything that went for the cost 
of machinery, tools, keeping up and replenishing tools, and cost of carrying on the 






122 



concern, that was applicable to the production of the 1,000 that -were delivered to 
the Government ? A. It is omitted from the claim against the city for the reason 
• that it had no business there ; it would be a fradulent claim to put it in. 

Q. (By the Court.) Here is $17,000 paid for keeping up tools ; can you state 
whether or not that did not include all the tools for making these guns delivered 
to the Government ; if it did nofc can you point out anything that was left out? 
A. I suppose that all the expenses on tools and machinery are not embraced in the 
$17,000 ; the equipment was by no means perfect .when we bought out MarstoUj 
if it had been we could have made guns immediately ; many tools were produced 
originally ; I suppose the machinery was competent to run for years, and the tools 
also, with the necessary repairs ; they were capable of making, say 100,000 guns, 
before they were worn out, so that 1,000 would involve 1-100 of their value ; I 
think the machinery was competent to make 300,000. 

Q. Now I want you to point out something in the shape of material. Or labor, 
or machines, or tools, that money was spent for in that factory that went to the 
1,000 guns, and is not included in these schedules ? A.I cannot name an item there, 
for it has been destroyed ; I can only state that the items charged to the city were 
items that were put into the cost to the city, and that the items in the Govern- 
ment guns have nothing at all to do with them . 

Q. (By the Court.) I understand you to say that you are not able to state 
whether, in making up this account, there was any deduction made for the wear 
and tear of tools and machinery in making those guns ? A. That is the precise 
point ; my impression is that no deduction was made ; the question was whether 
a much higher price should not be charged on account of the increase in the value. 
Q. What was the whole amount of your advances up to the 13th of July, irre- 
spective of your liabilities for bills unsettled ? A. The amount ot the small pay- 
ments made after that date was about $3,000, which would leave $193,000, includ- 
ing interest. 

Q. So far as the cash-book contains your advances, was there any deduction ap- 
parent on account of the $12,615 due from the Government, and not received till 
September? A. I do not see any thing in the book now ; there could not have been, 
for the reason that it had not been received from the Government. . 

Q. The $15,000 received from the Government does not appear on both sides of 
the account, and is not so carried through, increasing one side as much as the 
other ? A. Certainly, it stands as every item received and paid out. 

Q. The result of the balance is the same as if it had not gone in at all ? A. 
A. Certainly ; it is self-evident. 

Q. If you had received $207,000 from the city, on how many guns would you 
have received the royalty ? A. My recollection is 6,000. 

Q. Why would not that in that case have belonged to Brooks ? A. There was 
one reason why we should have claimed in equity an abatement, and that is be- 
cause the progress of the work was arrested at a period when the result proved no 
real profit was made, and because if he had got the whole royalty it would have 
been a very considerable profit on his patent, while we would have been losers. 

Q. Suppose frou had delivered them to the Government, and had lost money, 
would not the money have belonged to Brooks ? A. It would, and I should have 
have claimed in equity some abatement, because he was incidentally interested in 
the factory, as every gun afforded him a profit . 

Q. Why did you carry the whole amount of the deduction to the royalty, and 
not divide it pro rata ? A. I have given you the reason ; we claimed an abatement 
because we felt that he should be a common sharer with us. 

Q. You carried to him all that was docked, and how much besides ? A. The 
whole abatement he made was $10,000 out of $26,000. 

Q. How much did you fail to receive from the city and Government less than 
what you paid out, as ultimately settled? A. The net profit to the proprietors was 
about,$2,400. 

Q. That does not include the $2,000 proceeds of the auction sale ? A. This 
statement embraces all the money that I received ; Mr. Farlee has stated what he 
did with that. 

Q. Did you examine this claim before it was presented ? A. I did not critically,, 



//4^ 



123 



because I should have had no knowledge of its details if I did ; I think it was 
shown to me. 

Q. Were you present at any examination of witnesses before the Board of 
Supervisors? A. I was not ; I heard that it was going on, but the manner and 
the matter I knew nothing about. 

Q. What were your relations with Mr. Williamson in 1861 and prior? A. I 
was acquainted with him during tlie Charter election in 1859, if not prior ; he was 
a political friend and supporter of mine ; our relations subsequent to 1861 have 
been less intimate and cordial for reasons he may know better than I do. 

Q. When did you become acquainted with McNeil ? A. He was introduced to 
me by Williamson, I think, during the Charter election of 1859, as an active mem- 
ber of the American party ; he seemed to be a very active supporter of me through 
the canvass ; in 1861 he still professed to be my supporter, politically, and he 
seemed to be very active ; I had learned at that time not to place any great confi- 
dence in him ; he often called on me, seldom at my house until after the gun mat- 
ter. 

Q. When did you become acquainted wiih Mr. Andrews? A. In 1859, I think ; 
he was my supporter in 1859 and 1861. 

Q. When did you become acquainted with Mr. Stanton? A. I knew him, po- 
litically, about the same time ; he and I belonged to what was called the radical 
wing of the party. 

Q. What did you do toward Mr Stanton's support ? A. I cannot remember pre- 
cisely what I did; while at Washington, I, in conjunction with other friends, 
pressed him to the favorable consideration of the President, either t hrough the 
Secretary of the Treasury or else upon both ; I do not remember any otber efforts 
of mine after that ; I canno* say whether I wrote letters on the subject, nor do I 
remember going on again to support him ; I may have urged him while there, but 
I have no recollection. 

Q. When during 1861 did plans'begin to belaid for your nomination ? A. My 
own recollection is that it was not till about the time of the State Convention, in 
October, that I consented to permit my name to go in ; many of my friends had 
urged me to let my name go into the canvass ; having been run and defeated in 
1859, they felt that it was desirable to the party and to myself that I should con- 
sent to be a candidate again ; I never had any desire for the office, never wanted it, 
and it was with great reluctance that I consented to run either the first or the second 
time ; after receiving my nomination I withheld my acceptance for a considerable 
time — I think more than a week. 

Q. Did you take any active part in the distribution of offices in the Custom- 
house after Barney was appointed ? A. I took an active part in what I considered 
to be deserving appointments ; some of the applicants were not my friends, but 
were active, deserving members of the party. 

Q, Do you recollect a conversation concerning the appointment of Surveyor, in 
which you expressed the opinion that Mr. Chase would not make the appointment 
without conferring with you? A. I have no recollection of such a conversation; 
though I frequently saw McNeil— they can scarcely be called conferences ; I recol- 
lect Williamson being at my office that summer, as he had been at the prior can- 
A'ass several times, but the precise subject of conversation or conference I cannot 
remember, though I have canvassed the matter over and tried to remember; McNiel 
had a son a clerk in our store, and frequently came to see him. 

Q. When did you first inquire whether collections were made at the Custom- 
house in behalf of your election? A. I think not till after my nomination ; I may 
have seen Mr. Barney before, but I have no distinct recollection ; I knew some of 
my political friends had, and that they desired to have funds raised ; I think the 
first authoritative, distinct information I had on the subject of money being raised 
was from Messrs. Churchill and Cowdin. 

Q. Did they not go at your request to the ustom-house ? A. My own impres- 
sion is that they went there of their own volition, but their impression is other- 
wise ; you may assume it either way ; I think I expected aid from the Custom- 
housje from the time of my nomination, which was from ten to fourteen days before 
the election. , 



124 

Q. In July, 1861, how frequently did you see McNeil and Williamson ? A. I 
was out of the city a portion of the summer, and the occasions could not have 
been very frequent ; I thing they were both urgent that I should consent to be a 
candidate for mayor, and that the matter of patronage at the Custom-House was 
spoken of, as well as all subjects of political interest at that time ; I presume the 
subject of surveyorship was spoken of, if they called upon me before the appoint- 
ment was made ; I knew Andrews to be a capable and active man ; Mr. Dennison 
never participated very actively in politics ; Mr. Barney had to a considerable ex- 
tent. 

Q. Did you regard Mr. Barney as a managing politician ? (Objected to and 
excluded.) ' 

Q. You' were in Washington in July, 1863 ? A. According to my best recollec- 
tion, fortified by a note from Mr. Willard, I was not' ; I remember seeing Andrews 
there once, after he was Surveyor, at the office of the Secretary of the Treasury, 
during the winter ; I think he usually stops at Brown's Hotel ; I do not remem- 
ber seeing him there with Charles Cooper and McNeil ; my impression is pretty 
strong that I never saw McNeil in Washington at all ; he took some samples of 
blankets from our firm to sell at a stated price ; he went twice, I think ; how long 
he remained I do not know. 

Q. You say that you recollect nothing about Williamson's interview on the sub- 
ject of Andrews ? A. I recollect nothing about his saying it was satisfactory, and 
I do not believe it ever occurred, beca'hse he connects it with the declaration that 
I had employed him as agent to negotiate a bargain with Andrews— I to give my 
political influence toward his appointment, and to raise or cause to be raised from 
the Custom-House a sum of money for my elections-all of whicli is utterly un-^ 
grounded. 

Q. You consider the conversation between Williamson, yourself and McNeil on 
the question of contiibutions from the Custom-House through Andrews' appoint- 
ment as without foundation ? A. The essential portion of McNeil's testimony, 
on the matter of bargain, being absolutely and unqualifiedly untrue, I take it for 
granted that all the details and accompaniments are also untrue ; Williamson has 
only testified to a single interview on the subject ; he don't remember the words 
that he or I used ; he simply relates the substance ; now, if he meant to convey 
the idea that a bargain was consuriimated on the part of himself, McNeil, and 
Andrews, such as was stated, that is untrue. 

Q. Suppose he said that if Andrews was appointed you might rely on his sup- 
port, with ihe patronage and money of the Custom-House ? A. The matter of 
money, I am certain, was not referred to at all ; something may have been said 
about patronage either before or after Andrews' appointment, and his being a com- 
promise appointee — whether he would throw it in favor of the radical or conserva- 
tive wing of the party ; a day or two before election Williamson, McNeil, and 
others or the People's Union party became very restive because the money pro- 
mised was not forthcoming, so as to enable them to bring out their boxes and men 
at the election ; and I remember hearing Williamson express disappointment and 
I think unfriendly feelings towards Andrews. 

Q. Do you remember complaining to Williamson at your store that the Custom- 
House had only raised $7,000 ? A. No, I could not have claimed that because 
they raised more ; I may have said that the promise was to the committee of 
citizens $10,000 or $12,000 and it turned out only $9,500, involving therefore a 
larger expenditure on my part than I expected, but I have no distinct recollection 
of ever saying anything to him on the subject ; probably I would not remember 
it if I had ; it was an immaterial point. 

Q. Have you thought of any other contracts with the Government than those 
already stated by the witnesses in which you had an interest ? A. I have thought 
of none oth^. 

Q. Were you interested in contracts for arms from abroad ? A. Never. 

Q. What contracts were open in the name of yourself or your firm? A. We 
had two or three with Col. Vinton, one for infantry cloth and one for flannels, two 
or three for blankets, all open — those are all I now remember. 

Q. Did you become surety for any of the contracts that have been spoken of ? 



:^J" 



125 



A. I did in the contracts with Smith Brothers and Carbart, and also in many in 
which we had no interest . 

Q. What did you net on the sale of the 4,000 garments that were returned by 
the Government ? A. There were 16,000, of which some 3,500 were rejected ; I 
sold 100 of them at $3, and the balance at $2 50, less five per cent. ; our loss 
was about $7,000, and Smith's $4,500, making $11,500 ; I think there was a small 
profit on those accepted. 

Q. Did you ever declare during 1861. 1862, or 1863, that you had no connection 
with Government contracts ? (Objected to.) 

Mr. Field said the object was to get in the letter published in Th£ Albant/ 
Statesman . 

The Court allowed the question. 

A. I did so declare ; on the 25th of September, 1863, I declared. (Objected to.) 

Q. Did you so declare orally, subseqently ? A. I may have done so, because it 
would have been strictly true ; I never declared that I had had no interest in Gov- 
ernment contracts, but from that day to this I have had no interest in them. 

Q. Did you in September declare, "I have no Government con tracts,_ nor have 
I any business connection with the Government of any kind,, direct or indirect?" 
(Objected to, the writingTjeing the best evidence.) 

■ Counsel for defendant offered to show that the witness had so stated, and also 
these words : "But you will be astonished at the mendacity of the charge when I 
inform you that those contracts, like the office of my son, exist only in Mr. Weed's 
imagination." (Objected to— /excluded — exception taken.) 

Q. Did you declare before the 25th of September, or on that day, or after that 
day, in the year 1863, to any person or persons, that you had no Government con- 
tracts or any business connected with the Government of any kind, direct or indi- 
rect, except in this letter ? A. I have no recollection of having made that decla- 
ration,; but I might have made it with entire truthfulness. 

Q. When did this Government contract for guns, in which you were interested, 
by its own terms, expire ? A. The period I cannot designate without having the 
contract before me ; but I believe, from reading the contract and from Mr. Farlee's 
assertions, that there was notliing obligatory on the part of the contractor to con- 
tinue the business, or to deliver a single gun, longer than he desired ; and imme- 
diately on the destruction of the factory I gave notice to Mr. Farlee that I would 
have no further connection with it. At the rate we were turning out guns (fifty a 
day) it would have taken about six months to complete the contract ; the money 
was paid on the average about 6 or 7 weeks after the delivery ; the last payment on 
clothing contracts was, I believe, as Mr. Carhart stated, in July or August, 1863. 

Q. You say if you had stated to people that you had no interest in Government 
contracts, it would have been true. In what respect would it have been true — 
that your contracts had ceased ? A. It would have been true in the present tense, 
as this letter was written. > 

Ee-direct. — The ledger which has been produced was brought to the Mayor's 
office after the claim against the city had been made out, and to my best recollec- 
tion after it had been settled, by a poor woman ; «he appeared confused, and un- 
willing to answer inquiries, from which I supposed some of the rioters had taken it. 

Q. If the $28,000 received from the Government had been put on the credit side 
of that account, would there not have been a debit of the guns themselves, as man- 
ufactured, to be delivered? A. Undoubtedly so; the two would have balanced- 
each other ; neither of them had any right in the claim against the city. 

Q. Was or was not the wear and tear of the machinery and tools in the construc- 
tion of the guns delivered to the Government actually included in the claim ? A. I 
have already stated, on cross-examination, that I know of no abatement that was 
made on account of the wear and tear ; but the first 550 guns delivered to the 
Government were charged at $3 each more than was charged to the city. 

Q. Was or not the n6,000 allowed to Brooks for royalty all profit ? _ A. He had 
invested nothing in the factory ; I do not know what the patent cost him. 

Plaintiff closed, reserving the right to produce a record sent for to Washington, 
under commission, if it arrived. 



126 

EGBERT C. HUTCHINS EECALLED. 

Robert C. Hutchins was recalled by the defendant — Q. Did you hear what 
Thomas C . Fields said to Mr. Blunt when the Farlee claim was presented ? A. I 
recollect Mr. Fields being present at the time ; he objected to the passage of the 
claim, and said he wanted some gun men examined; I cannot state the words — that 
was the language ; he was very emphatic about it ; he wanted some gun men ex- 
amined. 

Oross-examined — ^This was at the meeting of the Committse at which the claim 
was considered and passed upon ; I have given Mr. Fields' language as far as I can ; 
Mr. Blunt was at the table,— and other members ; I can't say what the others said ; 
I think Mr. Blunt said something. 

ANDREW BLAKELEY CALLED. 

Andkew Blakelet, a resident of thi» city for 54 years, a politician for 30 years, 
belonging to the Union party, and formerly a Republican, was called to prove that 
there was never an instance, previous to Mayor Opdyke's election, in which the 
Custom-house had been assessed for a mayoralty election. (Objected to and excluded.) 

GEORGE W. QUINTARD CALLED. 

Geoege W. Quintard called by defendant— Have lived in New Tork twenty-five 
years ; am proprietor of the Morgan Iron Works ; have known Henry D. Stover 
seven or eight years ; have always heard him well spoken of ; I would believe him 
under oath. 

Cross-examined — Have had no dealings with Mr. Stover for four or five years ; 
have heard he was confined in Port Lafayette ; have heard one person say he was a 
man of bad moral character ; can't say I ever heard any one talk about his charac- 
ter for truth. 

REV. AARON H. BURLINGHAM, D.D., CALLED. 

The Rev. Aaron H. Burlingham, D.D., Minister of the South Baptist Church in 
Twenty-fifth street, was called to support H. D. Stover's character. He stated that 
he had a pew in his church for two years, and had the reputation of a good charac- 
ter ; would believehim under oath. 

Gross- examined —Is he a constant attendant at your church? A. Well, I think 
he might be more faithful. [Laughter.] 

Q. Is he not a very backsliding member of your congregation ? A . No, I should 
not style him so. 

Q. You have worse in your congregation ? A. The counsel will remember that 
I live in New York . [Laughter.] 

Q. Have you never heard anything against Mr. Stover's character ? A. No, sir ; 
have heard he was in Fort Lafayette ; have heard it wascoanected with Govern- 
ment contracts ; never heard his character spoken against, except in relation to this 
Government business. 

HEZEKIAH J. MONROE CALLED. 

Hezekiah J. Monroe, of Staten Island, stated he had been acquainted with Mr. 
Stover about six years ; as far as he had heard, his reputation was good ; would 
believe him under oath. 

GEORGE W. WALGROVE CALLED. 

George W. Walgrovb, of No. 17 Suffolk street, clothier, called on the same sub- 
ject, knew little more of Mr. Stover than that he had made his clothes and he paid 
for them. 

Mr. Field — It is suggested that this gentleman having made his clothes, knows 
his habits. (In which flash of wit and the laughter it occasioned, the witness re- 
tired, and the testimony closed). 

Adjourned to 10 o'clock to-morrow. 



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121 



SIXTEENTH DAY. 

THDESDAY, JANUARY 5TH, 1865. 

ARGUMENT OF COUNSEL— MR. PIERREPONT FOR DEFENDANT. 

t 

Mr. Pierhepont^ in opening his remarks, paid a tribute to the Court and Jury ; 
a Court so jmtient, so even-handed in its justice, so able and ready in the disposition 
of every legal question, invites our sincerest admiration ; and a Jury so unwearied 
in attention, so prompt, so apparently desirous to learn what was the honest truth 
of the case, I have never seei^ equaled. It is with sorrow that any right-minded 
man feels himself compelled to prosecute his fellow man for crime of any kind, but 
there comes a time in the life of every man, when he must choose between being a 
coward for his ease or a brave man for the right, when duty becomes a cross, then 
is the test of true courage manliness. 

That cross is increased when it brings a man in conflict with those against whom 
he has no feeling of ill-will. This controversy is the culminatior; of a fend of 
somewhat ancient date. It is a family quarrel, and like most family quarrels, 
very bitter. I have no part in that ; I belong to a different political organization — 
one that has its own quarrels bitter enough you may be sure, but one in which 
when an individual gets worsted in 'a conflict with another, he bears it like a man, 
and does not run whining to a court for a salve in the shape of damages to cure 
his wounded reputation. As you have seen from the evidence quoted from the 
libels themselves, as well as from other evidence in the case, Mr. Weed was the 
party upon whom the attack was first made. He was assailed as "the father of 
the lobby," the "corrupter of public morals," the " contriver of various corrupt 
schemes," a " coarse fellow," as engaged in the fraudulent charter of the steamer 
Cataline ; all which and much more was reiterated in the public newspapers — bark- 
ing and snapping continually, imtil Old Tliurlow turns, and with one snap of his 
whip sends his assailant whining to a court of justice, in search of a greenback 
plaster to cover his smarting wounds. Is that a manly way in which to act when 
worsted in a political feud ? 

But this cause involves a higher question, a question of public morality, a ques- 
tion of political responsibility : Whether the corruptions of men in office can be 
exposed ; the freedom of the press — the greatest question that ever came before the 
world — whether our free institutions shall continue, or corruption shall destroy 
them, and liberty perish forever off the face of the earth. This, gentlemen, is a 
time of civil war, and do you suppose there can be a great civil war which will 
not shake the great foundations of the nation ? The war on battle-fields will in a 
few months be over, but the war of ideas has just begun ; and when the bells shall 
ring in the joyful news of peace, beware lest they ring in a peace without liberty. 
The charge which the Court will give you, will be of more moment than the order 
any Major-General has issued, and your verdict will be vaster in its consequence 
than the issue of any battle. The instinct of the people tells them so ; and even 
the march of Sherman and the attack on Wilmington were not able to avert the 
attention of the people from this issue . 

It has even excited the attention of the religious community, so much so that 
it has been spoken of in the churches. (The counsel was about to read a report of 
some pulpit remarks, when Mr. Field interposed, and it was ruled out as irregular.) 

Gentlemen, the counsel for the plaintiff has stated in your presence that The 
World newspaper was sued for the same libel, and the damages are laid at $50,000, 
the same sum as Mr. Weed is sued for, so that, if successful, Mr. Opdyke will make 
money by these suits almost as fast as out of his secret contracts with the Govern- 
ment, or out of Mariposa stock, or out of his fraudulent gun claim on the city. In 
Mariposa it is shown that he did not invest a dollar, and he has made $800,000 or 
$900,000. 

Now sane men do not act without motive. Perhaps personal feelings had some- 
thing to do with it ; but the great motive for this suit was the love of money. If 
not for the sake of money, why drag Mr. Weed into a civil court, instead of having 
him punished in a criminal court ? Let these suits prevail, and tell me how much. 



128 

of civii liberty the people have left. No man can longer speak but in cautious 
whispers of the corruptions of a man in office ; no newspaper dare expose a word of 
it ; the press is muffled ; the voice of truth is hushed ; corruption and f i aud hold up 
the terror of the Court against any man who shall expose them ; justice and liberty 
have left America for cheats and scoundrels to revel in. 

Counsel went into a consideration of the wrongs often unavoidably committed 
on the liberty of individuals in a time of civil war, citing the example of Henry D. 
Stover, confined in Fort Lafayette for five months, and he says, on a charge trumped 
up at the instigation of some contractors for the Navy in Boston, with whom he 
had interfered ; a charge which the Government was now convinced was unfound- 
ed, and was doing all it could to repair the injury committed ; also, the case of Mr. 
Henderson, Navy Agent of New York, whom he spoke of as a man of high reli- 
gious character, one of the most moral, devout, and best men that ever lived, who 
was a close purchaser for the Government, and having refused to go into open con- 
tracts with a party to enable him to make more money out of the Government, he 
received notice that if he did not pay S20,000 at such a time and such a place, he 
would be prosecuted. He was prosecuted and indicted ; and Mr. Weed, like other 
citizens, supposing he was guilty, mentioned his name in the articles containing the 
alleged libel. Having on this trial discovered his error, he would do all he could 
to repair the great wrong done Mr. Henderson. 

This, continued the counsel, is a time of civil war. The tree of liberty is not 
growing very vigorously just now. Give a verdict which will muzzle the press, 
and you will find next year it is dead. You may water it with your tears, but it 
will not survive. This is a public question. Is it not right to expose the frauds of 
men in public places ? 

K it is right to expose them, then it is wrong that Mr. Weed should be pun- 
ished for exposing them. He ought to have a monument rather. The only tribu- 
nal before whom such offenders can be brought is that of public opinion ; aud the 
only instrument we can use is the public press. Will you destroy that ? You may 
not agree with Mr. Weed in politics. But go where Thurlow Weed has lived, talk 
with all classes of people, from the poor woman in the market-place to the rich, 
man in his mansion, with his warmest political friends and his most bitter foes, 
each and all will tell you that there never has lived on this continent a man who 
has relieved more humble people in their necessity, who has sympatliized more with' 
men in their sorrow, who has done more unselfish acts of kindness to his fellows. 
He has been the -maker of Governors, of Senators, of Ministers of State, of Presi- 
dents. He has held great power. He might have amasse^l great wealth, and yet 
he has lived all his life long in the most simple, frugal way. The only luxury in 
which he has ever indulged, is that of spending money freely toward relieving the 
wants of the poor, for whom his heart has always warmed in sympathy. I speak 
what all men know. When he dies his funeral will be followed by numberless 
friends ; the grass on his grave will long keep green, watered by the tears of grate- 
ful hearts. He has exposed the wrongs of Mr. Opdyke while in office. Will you 
find him guilty for it ? If so, you tan crucify your own best friends. When Mr. 
Weed returned from Europe, where, together with Archbishop Hughes, he had 
rendered the country great service, the freedom of the city was voted him. When 
this trial is over the freedom of the city will be voted him again, and George Op- 
dyke will not veto that resolution. The question has been asked a thousand times, 
How dare Mr. Opdyke bring this suit? Why, the evidence was all his own, in his 
own possession ; the witnesses we had to call were in his interest ; Mr. Blunt was 
his friend : he did not believe the thing could be proved ; and it is a miracle that 
they have been proved, and more than proved. He did not think he ran any risk. 
But when a man is engaged in a fraud he always runs a risk, and sooner or later it 
will be revealed. Now I call your attention to the first part of the article, com- 
plained of as libelous : "Mr. Opdyke may enlarge the field of inquiry and look 
into this alleged sale of the Surveyorship of the port of New York." Suppose there 
was no truth in this statement, taken in connection with what precedes, ought 
there to have been a suit about it. But it is true in substance and in fact ; and if 
one of the parties did cheat a little by keeping back part of the price, it does not 
alter the fafit of the sale. When this suit was brought, gentlemen, the plaintiff 



/<; 



129 



must have had in mind the old saying : ' ' The greater the truth the greater the 
libel." But his friend Orison Blunt, who is a lawyer, should have informed him 
better, that there has been a change in the law, that the old adage does not pre- 
vail, and that when a man has proved the truth of the libel he is protected. Coun- 
sel went into a review of the testimony on this point. Could it be believed that 
McNiel, who had been a member of the Legislature, had been engaged in political 
life,, and a friend of Mr Opdyke, had concocted all the story which he related ? 
As a counterfeit bill was detected by its appearance, so could a jury tell by the man- 
ner of a witness on the stand whether he was telling the truth. McNiel was the 
friend of Mr. Opdyke, and desired his election as Mayor. Mr. Andrews was also 
his friend, and himself was looking for the Surveyorship. What more ntitural than 
that he should go to McNeil and tell him he wanted Opdyke's influence ; that he 
wanted him to drop Stanton and support him. 

McNeil says: "How will it be to Mr. Opdyke's interest ?" Andrews replies : 
"I will hav« $10,000 collected in the Custom-house to help his election as Mayor." 
McNeil reports this to Opdyke next day. Opdyke seems contented with it, but 
says, " Will he not cheat you ?" "I think not," says McNeil, "but pick your 
man, and we will go and meet him and have the think fixed." Says Opdyke, 
*' Suppose you take Amor J. Williamson ?" Agreed. Next day they see Andrews ; 
make an appointment in an eating-house on the 6th July, in a private room, where 
Andrews says there was a " spread." 

The bargain is there made. Both McNeil and Williamson tell you the same 
thing, that when they sat down McNeil says, "Well, Andrews, let us go to busi- 
ness." That Andrews entered into the arrangement. When leaving McNeil says 
to Williamson, "Are you satisfied?" he being Opdyke's picked man. He says he 
is satisfied. That this went to Opdyke, who expressed himself satisfied. Do you 
think they have both contrived this story ? Andrews, after he gets the office, 
thanks McNeil and Williamson both for aiding him. Had Williamson and McNeil 
any motive to be filse in this narration ? You cannot conceive of any. Go to the 
Custom-house and see what they do to carry out that bargain. Mr. Barney says he 
never heard of any money being raised in the Custom-house on a Mayoralty elec- 
tion before this. No one ever did. Federal officers do not hold under the Mayor ; 
why was this assessment mac^e ? It was made to carrj^ out the arrangement be- 
tween Andrews and Opdyke. Barney tells you he was opposed to the whole thing. 
He had no knowledge of this secret contract between Andrews and Opdyke to as- 
sess the Custom-house for $10,000. And what kind of a thing was that for George 
Opdyke, a man of great wealth, to enter into ? To get $10,000 out of the poor 
laboring clerks of the Custom-house ; to do what f To malco him Mayor of the 
city of New York. In heaven's name, if he wanted to be Mayor of the city, why 
not pay the expenses out of his own money — money got out of the Government 
and his vast trade ? You are told it was ail voluntary. Of course, it was very 
■"voluntary." A circular issued by the head of the department. Ah, if any of 
you were a clerk in the Custom-house, you would find out what a voluntary sub- 
scription means. If it is not responded to, it will not be long before you receive a 
" voluntary" note stating " voluntarily " that your services will be no longer re- 
quired. 

Yes, Mr. Opdylte may enlarge the field of inquiry, so as to embrace the alleged 
Bale of the office of Surveyor of the Port of New York. We have made a brief 
examination of it, and find it pretty satisfactory . 

Counsel reviewed the testimony of Mr. Andrews himself, as on close inspection 
tending to show the truth of the matter he sought to deny. 

The next libel was in relation to the Mariposa estate — that Opdyke, Ketchum, 
and Hoey obtained $2,400,000. The fact proved was that they received $2,600,000. 
No one of them but Opdyke had sued for libel. When Gen. Fremont was asked 
whether any advantage was taken of him, his answer was, "Any unfair advan- 
tage ? I (hesitating) think not." The business was urgent, the pressure was great, 
and, he wisely took his hand out of the lion's mouth. Gr.n. Fremont was willing 
to give two and a half millions to adjust difficulties, and Opdyke and the other gentle- 
men got each $800,000 or $900,000 for nothing. Gen . Fremont was required to give, 
in addition to his first agreement, $700,000, out of which Mr. Fields got his coun- 
9 



'iV^ 



V 



130 



Bel fees, and then to give a proxy for a large amount of his own stock, and at last 
to sell 500 shares at $25 a share, when it was worth about double in the mar- 
ket. Then Fremont commenced an action about $180,000 worth of bonds, which 
he afterwards adjusted. The next libel was in regard to secret partnerships. It 
was proved that be made $172,000 out of one batch in a very few months. Wil- 
liam Churchill sold to Opdyke three distinct contracts with the Government for 
clothing, for which Opdyke paid him 12 J cents per coat. Churchill could not get 
the goods except of Opdyke. Mr. Spaulding sold Opdyke a quantity of cloth which 
was so bad, as the plaintiff claimed, that it would not take an indigo blue dye ; but 
somehow or other they did work it in. Then there was the contract with the stale 
for military clothing. Mr. Carhart produced a list of contracts in his own name, 
amounting to $4,600,000, in which Opdyke was interested, and at the same time 
surety, making as his share $172,000. In Sept., 1863, Opdyke says it was true 
that he had no contracts— in the present tense. But when a man states, "equally 
ungrounded is the charge that I have any interest in Government contracts ; I 
have none, direct or indirect, and they exist only in Mr Weed's imagination," do 
you not understand that he means I have had no contracts 1 In regard to the 
guns, if there was a fraud in presenting the claim, it was to be laid to the Mayor 
of the city in 1863. It was hoped that a wealthy Mayor would be proof against 
corruption. But we find him secretly interested in contracts. Instead of guarding 
the city treasury, he took money illegally from the cityand pocketed it. Opdyke 
went into a contract for making guns, a hazardous business, with which he was 
entirely unacquainted. Marston, who is making them, requires more and more ' 
money, until Opdyke advances $65,000. Then Opdyke buys out the establishment 
in the name of Farlee. He was then willing to get out of the business at a loss of 
$10,000 or $20,000. 4-t length his advances amounted to $185,000, when he said 
he would be willing to sell out at a loss of $25,000 or $30,000. Then came the 
destruction of the armory. A great effort had been made to show that Opdyke did 
not connive at the destruction of his establishment. No such charge had been 
made in the opening. The only thing that he (Mr. Pierrepont) said was that when 
it was found that the factory was going to be destroyed, the plaintiff felt very quiet 
about it, knowing that the city would have to pay for it, and that his ruinously- 
losing and bankrupt concern would be better paid for by the city. Now, all an 
insurance company would have to pay would be the actual value of the property 
destroyed ; not any prospective profit. While Opdyke was thinking how to make 
up his claim, Loren Jones came in and suggested to charge the contract price, less 
the cost of finishing the guns ; that would protect the patentees and all. Opdyke 
had been thinking that he might claim what he had paid out, but he says he 
thought ^that would be highly illegal, so he adopts the suggestion of |Jones, by 
which he gets all he put in, with all the prospective profit besides. That would not 
be illegal ! Now Jones swears that he could duplicate all the machinery for 
§40,000, thus showing an overcharge of $63,000. The cash-book showed that 
Jones had told the truth in regard to the matter. Only $15,000 had been received 
from the Government until the 11th of September, so that the balance of the 
$28,000 was kept out. The $15,000 balances itself in the book. In making up 
the account they had to estimate the value of the materials for unfinished guns ; 
the value of the different parts of the guns was proved accurately on this trial ; 
now if they had put in an accurate account of the materials destroyed, it would have 
reduced the claim $63,000. Supervisor Blunt, who had dismissed riot claims with 
a five minutes' hearing, takes up the claim of Opdyke into his own choice keeping, 
and in a few days he is nominated for Mayor in Opdyke's place. Mr. Fields, on 
behalf of the Corporation, was not allowed to cross-examine witnesses or hear the 
testimony. Supervisor Purdy resigned the very day the claim was passed. Counsel 
reviewed the testimony of Mr. Farlee before the Supervisors, in which he stated 
that the articles were charged at the prices they cost to make them, and pointed 
out several discrepancies in the items as compared with the inventory ; among 
others $3,000 for the model gun, which cost only $500. Farlee had confessed himself 
in error in his former testimony. He denies that he swore that he was " the entire 
owner of the claim," and says he presented the bill of sale and stated to Mr. Blunt 
that it was not pertinent to inquire into the relation of other parties. Mr. Blunt 



X^S^ 



131 



knew they had been making some guns, and he thought they ought to be credited ; 
so when we asked him, " Was anything said about $28,000 havina; been received 
back from the Government of the United States ?" he answered thus : " I asked 
that question distinctly and it was stated that there had not been any, inasmuch 
as no guns had been delivered ; that the guns were ready to be delivered but had 
not been receipted for." And it turned out that they had received $28,000 at that 
time. Mr. Blunt swears that he never heard one word about the claim being got 
up in the mode in which the other side now insist it was. Counsel referred to the 
testimony of Mr. Keene before the Supervisors, to show that the present theory wag 
not there exhibited. The theory had been changed, and when Opdyke had got all 
his costs and profits from the city he refused to pay over the royalty to Mr. Brooks, 
because he says, '• if we lost, he should lose also." Upon that principle, if he had 
bought cloth of Spaulding and made up clothing, and from any cause the cloth had 
become injured, he should make Spaulding lose ; or, if he had borrowed money to 
go into business, and had been unsuccessful, the lender ought to lose a part of his 
money. The great question for the jury to decide was, whether a man who, in 
office,' had been undertaking to get, by indirection and by means which the law 
regards as fraudulent, out of the city, money, when he himself was its trustee and 
guardian. If the jury should say that that was right, then corruption had over- 
ridden justice, fraud triumphed over honesty, and the day of our destruction was 
near. If these things could not be exposed, then our liberties were gone. Mr. 
Opdyke sat in the Board of Supervisors while Mr, Waterman's claim was acted 
upon — then made a great show of honesty when his own claim came up, all the 
time knowing the fraudulent system upon which it was made out. Mr. Fields 
took Mr. Purdy aside and said, "This is too indelicate for Opdyke to remain." 
Purdy then makes a suggestion to Opdyke, and he leaves the room. Gentlemen, 
the responsibility that rests upon you is the gravest that has been cast upon you in 
a lifetime. All I ask is that you shall do your duty in a way that when you go out 
from here you may feel that you have done right, and may ba able to tell your 
fellow-citizens why it is right. 

MR. EMOTT FOR THE PLAINTIFF. 

Me. Emott, in addressing the jury for the plaintiff, said he was hound to ad- 
vert to the manifesto with which the defense began, and contrast the promise with 
the performance. He had heard that a certain learned counselor of this court, who 
being applied to by a deputation of citizens for advice as to how to vote, recommended 
that they should ask for divine guidance on their knees in their closets. He feared 
if the counsel who opened for the defense hh,d made any such preparation for his 
opening, there must have squatted close by his ear a tempter in the form of T. W. 
That opening was marked by the same vindictive malice that dictated these libels 
— it was even more outrageous. The counsel had spoken of this as the beginning 
of a revolution. Who was to be the Robespierre, the Marat, the Danton ? The intended 
victims he supposed were Messrs. Opdyke, Ketchum, Hoey, Field, Godwin and Gree- 
ley. Mr. Weed struck at these men because he hated them ; they were in his way. 
How many would follow the defendant in a crusade against political profligacy and 
legislative and municipal corruption ! You might as well expect to see T. G. 
Fields preaching sobriety and good order in legislative bodies. The speaker would 
not follow the example set by the defendant's counsel and resort to personal abuse. 
Mr. Weed's character was not on trial. But he would say this : that the community 
would hardly select such a man to make war upon what his counsel had affected 
to denounce ; they would first demand that he should clear himself of imputations 
which in the common speech of men make him the very type of the character 
which he has so boldly attempted and so miserably failed to fix upon this plaintiff. 
Mr. Weed had sought to thrust his personal animosities into great public questions, 
and had used the leading papers of the State to gratify personal spleen The 
counsel in his opening had alluded to the manner of the plaintiff's counsel in open- 
ing the case, as being characterized with a want of earnestness. If he (Mr. Em- 
ott) had appeared to exhibit any lack of earnestness and conviction, it was his 



13ii 

own fault and not that of his client. It was better to coinmit that fault than to 
make an exhibition of forensic ground and lofty tumbling. It must be a miserable 
cause which compelled a lawyer and a gentleman to descead so far as to repeat the 
slang of such a man as Charles McNeil, to say that Mr. Opdyke had spumed the 
ladder by which he had climbed from the lowest walks of life. ISTo man before 
the defendant had ever dared to blacken the name of G-eorge Opdyke. The defen- 
dant knew that Mr. Opdyke had risen by energy, capacity and integrity to wealth 
and public respect. Where did we find the representatives of the class from which 
the gentleman's client sprung ? Were they the creatures of the legislative lobby 
and the municipal halls who had been thronging this court during the trial, coming 
day by day to serve their master ? " Where the carcass is there the vultures are 
gathered together. " The plaintiff had been charged with motives of av^arice iri 
this prosecution. Every successful, thrifty man is called avaricious. But did any 
one ever hear of a man bringing a libel suit against Thurlow Weed for love of money ? 
The largest verdict would not more than compensate him for the expense, labor and 
loss of time involved in such a suit. It is idle to talk of avaricious motives in such a 
suit to reasonable men, as idle to quote Samuel Eogers on the execution of young 
women in 1790, or De Tocqueville on Louis Philippe. Mr. Opdyke comes here to 
the Bar of public justice to vindicate his character. He may thank God that he 
has done it completely ; and I know that for that object he will cheerfully pay all 
that the duty has cost in money, as he has patiently borne all it has brought of 
renewed insult, and that he will not touch one dollar of the largest verdict you can 
give him. He does not need Mr. Weed's money ; there ai-e Charities in this city 
that do. Mr. Opdyke knew the Avary, untiring, unscrupulous antagonist with 
whom he luust grapple. He knew the facts -just what he had done and designed 
—the men he dealt \nth. — the whole ease. r>o you think he would have come 
here, invited these men to spread the map of his whole life before you, if he had 
not knoT/n that he had nothing to fear from the truth, and that a jury conld not 
be made to believe a lie ? 

The defendant complains that he is not indicted. It is a strange complaint; 
from him. If he had been on trial as a criminal he would long since have been 
convicted, for the issue now is not whether this is a libel and a false libel, but how 
much shall the libeler pay for uttering it We choose to submit that to you and 
not to leave it to the Court, as it would have been left on a criminal prosecution. 
The gentlemen on the other side, in their hearts, do not complain of this. Their 
hope, their purpose it to prevail on you to give a small verdict for a few hundred 
or a few thousand dollars, and to use that to blast the man they defame and hate. 
They look for a small verdict to say that George Opdyke's character is worth 
nothing. That is what they call mitigation. We ask for a verdict that shall for- 
ever close their mouths. Let there be no trickery of getting a small verdict on 
one ground and using it for another. 

But this is not all the difference to the parties between this and a trial in the 
Criminal Court. There Mr. Weed would stand with his mouth closed. He could 
not testify. The plaintiff has always intended to be himself a witness, and he 
offered the same privilege to his adversary. Mr. Weed could have told you on 
oath, how pure and free from malice his motives were, how nothing but public 
duty impelled him. He could have testified to the efforts which he made to get at 
the truth and the information which led him to believe Opdyke so bad. He has 
declined to attempt it. If he could not do it, it is not our flxult, but his, and that 
of his cause. You will see the fairness, however, of bidding his counsel complain 
of it. The counsel dragged in and read to you a letter of Mr, Opdyke, addressed 
to Senator Harris. I pass over the manner in which that letter was introduced to 
you, under the apology which has been made for it. But why was it use'd at all ? 
It is on its face a reply to a previous attack — a newspaper attack. The senior coun- 
sel calls his client and mine newspaper pugilists. There is not a particle of evi- 
dence connecting Mr. Opdyke with such a charge, and I will not permit the coun- 
sel to give that name to his client. He is not an editor. He did not publish these 
things to give notoriety to a newspaper, to enliven a political campaign, or to 
gratify the morbid public craving for slander. It was not in the heat of politi- 
cal feuds, or in discharge of what editors sometimes call their duty. 

He went deliberately and of malice, as any other man might, and borrowed 



Mf 



133 



column after column of this newspaper, to serve his malicious purposes. But 
■what is the libel ? It is, first, that the plaintiff had made money out of Govern- 
ment contracts corruptly and dishonestly. Counsel proceeded to state the vari- 
ous libels, and his view of ttffe law in regard to them. The rule required the 
justification to be complete as to all the charges. 

The Court stated that he coincided with that view. He was inclined to think, " 
in regard to the charge of making money out of Government contracts, that in 
some stages of society it might not be libelous, and theretore it was a question 
for the jury to determine whether it was. 

Mr. Emott claimed that tlie defendant having admitted in his answer both 
the publication and the meaning of the articles, he was precluded from contro- 
verting the sense as much as the publication. 

The Couet — That would hardly be admitted by innuendo. 

Mr. Emott cited several authorities for the law on the subject of libel, and 
among them the case of Weed agt. Foster, in which the libel was, "paying 
$5,000 for receiving the appointment of Inspector of Port by Governor Seward." 
A demurrer was put in, and Judge Harris (now Senator) held it was libelous. The 
defendant sought to justify by proving that McNeil and Gibbs said there was a 
swindle. If a man should print that Smith said that Jones was a thief, could 
he justify by bringing out Smith and making him swear that he did do so. 
The fact and not the statement must be proved. The defendant's counsel made 
numerous statements in the opening which the evidence failed to sustain. William 
Churchill was asked if Opdyke had forestalled the market, as charged by the 
counsel, and he denied it. So with the charge of dyeing cloth so that it 
washed out and faded. Mr. Spaulding swears that the goods he sold Opdyke 
were the best of the kind, and he recommended a dyer, and Opdyke swears that 
there were no defects in the goods made from the cloth. They were improperly 
dyed, which was not the plaintiff's fault, but the spotted parts were not made 
up into garments, as Smith testified. In consequence of making more garments 
than the contract called for, some 3,500 were rejected. It was said that Opdyke 
made $172,000 out of the Carhart contracts. The proof was that the firm made 
that amount out of some $4,800,000 worth of contracts, one-third of -which pro- 
fits belonged to the plaintiff, and no profit at all would have been made but for 
holding on to the Government vouchers and certificates. The charge of secrecy 
was absurd. Was there anything discreditable or dishonorable in the Carhart con- 
tracts? In answer to the libel with regard to "shoddy blankets," the answer 
alleges that it was not only blankets but clothing or coats that were referred to — 
an aggravation of the libel. Now the witness Bacon testified that there were no 
shoddy blankets known, and no blankets rejected in New York except a few which 
were always thrown out in every contract. There was an utter failure to justify 
this charge of the libel. There was no evidence of any unfair dealings on the part 
of the plaintiff. The libel in regard to the gun contract was, first, that there was 
a swindle in it. Counsel would show that less was claimed than was legally due 
from the city. A base and cowardly attempt was made to impute to the plaintiff 
connivance at the destruction of the armory. It was left to counsel with less re- 
sponsibility and more boldness, not to say effrontery, to do that, and he could not 
escape from it by any apology. The counsel sought to make it appear that the 
armory was a losing concern, and that Opdyke was willing to sell out at a great 
loss. Such was not the case after Keene had taken hold of the factory. It was 
then an entire success, and the arms that they were making were such as they had 
good reason to believe would be in request for other uses than that of the Govern- 
ment. The gentleman stated that the policemen were withdrawn from the armory, 
and immediately thereafter the Mayor could not be found until he was followed 
to the St. Nicholas Hotel. Counsel here read a passage from Mr. Pierrepont's 
opening, and said that either the witnesses had lied in their statements to Mr. P., 
or Mr. r. had misstated what they told him. The policemen were not withdrawn, 
hut were driven out, their lives being in jeopardy. There was no dispute that 
Opdyke had invested in the armory $185,000, McNeil $7,000, and that there was 
some $25,000 of liabilities. The claim submitted to the Board of Supervisors was 
intended to give the value of the property. The fraud was either in the principle 



134 

adopted on the basis of tte claim, or the amourit, or the application of the princi- 
ple, or the mode of getting the claim through. Now Supervisor Blunt had a name 
proverbial for integrity and energy. The minutes of the testimony were very im- 
perfect. Farlee had shown that they were wrong *in several particulars — one in 
regard to a lathe, showing that the minute-taker rather than Farlee was the person 
to be convicted of misstatement. The witnesses say that the principle upon which 
it was made out was distinctly presented to the Board, and no man could hardly 
fail of understanding it. Even the minutes contain the fact that the contract price 
■was settled to be the basis of the value of the gims. The machinery was purchased 
at a fair price, unless there was cheating on the part of the appraisers. The coun- 
Bel had exhibited here such parts of the gun as suited their purpose. Were we 
bound, in estimating the value of property in a factory, to reduce it to the bare 
value of the fragments ? At what stage do we get from the value of the finished 
gun to the value of the parts ? Suppose they had been all finished but the butt- 
plate, would they be worth nothing but the cost of the separate pieces ? The ques- 
ion was, whether the plaintiff had a right to charge their cost on their value. If 
he charged the cost, then $22 was too much for the finished guns ; that was not 
their value in the open market. A great deal had been said about prospective 
profits. The courts, in speaking of that, refer to future contingent profits of pros- 
pective undertakings. That was what the courts condemned. 

Counsel contended that, by reason of a riot, the city was not merely in the 
place of an insurer, but was put in the place of the party who destroyed the build- 
ing, and the sufferer could recover whatever damage he had suffered, including the 
profits that would have been made, had the contract been completed. 

(Philadelphia and Wilmington Railroad case^lS How. 307 ; White agt. Mose- 
by, 8 Pickering, 356 ; 7 Gushing, 516 ; 3 Duer, 406.) 

Mr. Opdyke then had a right to claim against the city the full price he would 
have received from the Government, less the expense it would take to complete the 
guns. Had he stood on his rights, and continued the action commenced against 
the city, he could have recovered the whole amount, on the construction of the law 
— that whatever the rioters would have been bound to pay, if sued, and responsi- 
ble, the city had a right to pay. Great fault was found with the cash-book, for 
what reason he could not see. It showed the facts, and all the facts, that were at 
the time the entries were made. The plaintiff could have left this gun claim upon 
the statement of the witnesses as to their proper motives ; upon the fact that no 
profit had been made out of the city. It was enough to satisfy the jury Mr. Op- 
dyke honestly believed he was entitled to the amount claimed. As to the pro- 
ceedings before the committee, it had been attempted to prove that there was some- 
thing wrong in passing upon the claim, because Mr. Thomas C. Fields was not con- 
sulted, and had no opportunity of examining witnesses. Well, the jury would 
probably be able to estimate what value the services of Mr. Thomas C. Fields would 
have been to the committee, and come to the same conclusion that Mr. Blunt had. 

The next charge in the libel was that the son-in-law of Mr. Opdyke made a claim 
for the destruction of the gun factory ; that Mr. Opdyke, by virtue of his office, 
was a member of the committee before whom the claim was made ; that he dis- 
claimed (to the committee) any interest in that claim ; investigated the claim, and 
at an early day received a check, and this they urged was not libelous. Now there - 
was not only no proof that Mr. Opdyke disclaimed his interest, but it was not even 
concealed. All over the city it was known as Opdyke' s gun factory. Every one 
knew he had an interest in it, although not its extent or character. It was as\well 
known as that Weed had an interest in the Evening Journal, or that Horace Gree- 
ley was editor of the Tribune. Mr. Opdyke was not a memlaer of the committee. 
He did not take any part in the passage of the claim, but, on the contrary, retired. 

Next came the charge that Mr. Opdyke had sold the office of Surveyor of 
the Port of New York for $10,000. He would not stop to ask if this was libel- 
ous. The principal witness to justify this libel was Mr. McNeil, who was held up 
as a member of the Legislature and therefore to be believed. Well, perhaps some 
people might not consider that such a high recommendation. Much had taken 
place in the Legislature of this State that did not prove the members immaculate. 
It had been suggested, indeed, that perhaps if this suit could be kept going for the 



^^^ 



135 



whole winter, the legislation this session might be improved. The story of 
McNeil was absurd on its face. Did any one suppose that if Mr. Opdyke and Mr. 
Andrews wished to enter into the bargain alleged, they would have got McNeil to 
make it and send Amor J. Williamson as a witness ? Was that the way polit'cians 
man bargains they were ashamed of to call in two witnesses. Did any one suppose 
Thurlow Weed ever made a bargain in that way ? But the testimony was full and 
explicit that Mr. Opdyke had nothing to do with the appointment of Mr. Andrews 
— had not urged it or aided it in any way. 

Counsel then came to consider the libelous charge against the plaintiff in rela- 
tion to the Mariposa stock, that Mr. Opdyke and others had reminded General Fre- 
mont that when running for a candidate in 1856, he was weakened by pecuniary 
embarrassments, pressed him to put his aif lirs in better shape, and in training Gen, 
Fremont for the Presidential canvass his grooms received the gratuity of $2,600,000. 
Now Gen. Fremont showed himself on the stand to be one who fully and clearly 
understood his own interests, so much so as to elicit a well- deserved tribute from 
the counsel for the defendant . He had shown that the Mariposa property was so 
hampered with debts and diflSculties, that the best offer he could get prior to this 
arrangement with Messrs. Ketchum, Opdyke & Hoey was to settle the claim against 
it for one-half the property. Under the urgent pressure of claims against the 
property Gen, Fremont made the arrangement with these gentlemen to have the 
debts paid for one-quarter of the estates. He had explicitly denied any exaction or 
extortion on the part of these gentlemen ; said that he was more anxious to perfect, 
the arrangement than they were ; that he saw he must either close the bargain or 
the estate would all be lost. Here was no pressure, no playing upon his presidential 
aspirations. Mr. Opdyke had such doubt of the profitableness of the arrangement 
that he refused to receive the whole of the share allotted to him. 

It being now 5 o'clock the Court adjourned till to-morrow, when Mr. Emott 
will be allowed fifteen minutes on the question of damages, to be followed by Mr, 
Evarts and Mr. Field. 



SEVENTEENTH DAY. 

FRIDAY, JANUARY 6TH, 1865. 

M*R. EMOTT FOR PLAINTIFF (CONTINUED). 

At the opening of the Court, Mr. Emott resumed his argument in relation to the 
alleged fraud in the omission of the $28,000 received from the Government. There was 
not the shghtest evidence to support the allegation. Mr. Farlee did not exhibit to the 
Board of Supervisors the statement of profit or loss which he had given in evidence on 
this trial, but he was examined on the subject by Mr. Blunt, and stated the result to 
which that calculation led him, and in that calculation he was compelled to take into 
account the $28,000. The item of 115,000 that appeared in the cash-book was balanced, 
and it had nothing to do with the claim, which was for machinery, tools, and material. 
In I'egard to damages, counsel insisted that a small verdict at the end of such a trial and 
against such a libel would be a repetition of the slander. 

Counsel then cited authorities on the law of libel, and closed by submitting numerous 
requests to charge, the last of which was that the reiteration of the charges in the coub- 
eel's opening were also evidences of maUce to be submitted to the jury. 

MR. EVARTS FOR DEPENDANT. 

Mr. Evakts followed on behalf of the defendant. He said that much of the time on 
this trial had been occupied in overthrowing charges and difiSculties which were not 
made and did not present themselves. Take out from the list of witnesses Messrs. Blunt, 
Farlee, Andrews and Opdyke, and you will have exhausted all who have spoken to the 
cause, — all who shed any light upon the relation to the parties, on the subject of the contro- 
versy, or the right or wrong of the alleged libels, or the alleged misconduct of the plain- 
tiff. The disclosures of this trial have been felt, by all the honest and highminded, as 
tending to public good, and by all the corrupt men, as a blow at them in the person of 
the plaintiff. This action was brought to recover $50,000, not for any pecuniary damage, 
but to inflict punishment for a public offence. It had been intimated that the plaintiff 
did not intend to appropriate any of the proceeds of the verdict, but to apply them to 



v\^ 



136 



charitable uses. The idea of Mr. Opdyke being the almoner of Mr. Weed's means was 
ludicrous If Mr. Weed could become the almoner of Mr. Opdyke's resources, he would, 
doubtless, make charitable use of large sums of Mr. Opdyke's money, as he had done 
with his own. But the counsel said that the expenses of this suit would hardly be more 
than met by a verdict to the full amount. Did the plaintiff intend to deduct those ex- 
penses before he applied tlie charity? Counsel dwelt at some length on the subject of 
the liberty of the press aud the law of libel, showing the great progress made in juris- 
prudence on these questions, all of which was gained by the instincts of the people 
against the maxims of power and authority. In adverting to one of the earliest trials 
for libel in this country, where the jury brought in a verdict of not guilty, which was 
answered by three cheers from- the people outside the court, counsel stated that in con- 
sequence of that result, the freedom of the city was voted to Alexander Hamilton, 
counsel for the defendant, and there was no Mayor Opdyke to veto that resolution. 
f Here there was an outburst of applause in the courtroom, which was censured by the 
Judge.] Counsel then referred to the last great libel suit of Littlejohn vs. Greeley, 
where only one of the jury was in favor of substantial damages. The necessary com- 
ments on the conduct of public men permits the invasion of their private affairs, though 
not of their domestic relations. A good man never, except by mischance appealed to a 
legal tribunal for protection in such cases. The case of Fry vs. Bennett was a 
peculiar one, where the private affairs of the plaintiff were invaded persistently. 
Mr. Opdyke had been wholly occupied in the pursuit of gain, and he stepped right 
into public life from that pursuit, which he had never for a moment abandoned. 
There were village Opdykes in every hamlet throughout the land. Mr. Weed's 
career had been the opposite of Mr. Opdyke's. He had avoided public office 
and yet he had had power. How did he get it? It came from what he had done for 
other^ not from what others had done for him. His thoughts were occupied with mat- 
ters of great public interest, whilst those who could not appreciate him imagined that 
he was brooding over private and selfish matters. Hence they sought to drown him 
with aspersion. The organs of the party to which Mr. Weed belonged opened upon him, 
and sought to drive him out of the position of public influence which he had enjoyed for 
half a century. The slander in regard to the steamer Cataline was exploded. Then he 
undertook to unmask his defamers, and among them this plaintiff, who was presented 
here rather in the attitude of a defendant. This alleged libel was aimed at ^ whole 
tribe. It was a familiar suggestion, that the presumption always was that the plaintiff 
in a libel suit had just cause. But that presumption was unfounded. It was more likely 
to be the fact that he sought to escape from the presumed truth of the charges, by get- 
ting a nominal verdict. It was because there were no epithets, no abuse, no adjectives 
in the simple statement of the points in, Mr. Opdyke's public conduct, that it was felt. 
When Sancho Panza got sorely beaten in one of his master's encounters, Don Quixote 
consoled him by saying : " The reason thou feelest that pain all down they back is, that 
the stick with which thou wast flogged was of that length." The articles claimed to be 
libelous are both in reply to prior aitacks. The first article is headed, '■ The New York 
Evening Post." The Post had called Mr. Weed a burglar In the matter of the Cataline. 
Mr. Weed refuted the Cataline libel by the statements of all the parties connected 
with it. Then he proceeded to •'unmask" his defamers. He charges this plaintiff 
with getting up that Cataline slander, and with having assailed him at Washington and 
elsewhere. Then comes the present alleged libel ; it must be taken in connection 
with the rest. There was no charge of getting up contracts corruptly; but, "this 
man who brings 'hese charges against me has made more money out of secret partner- 
ships than any fifty sharpers, Jew or Gentile ;" not " sharper" in the vulgar sense, 
but in the primary aieaning, according to Webster, viz : " A shrewd man in making 
bargains." The secondary meaning was: " Cheating in bargains, or in gaming." The 
statement in regard to the Mariposa affair was not a libel, unless it was contained in 
its final words, that " there were other exactions and extortions during the negotia- 
tion that would make Jews blush." In other words. General Fremont had to sub- 
mit to the loss of large slices of his property before the matter was brought to 
a successful conclusion. The article then turns upon the Tnbune, and closes with an 
avowal on Mr. Weed's part of his disinterested support of the Government, and the 
causes of his hostility and opposition to the radical wing of the party. The second ar- 
ticle was headed " The Evening Post, Messrs. Opdyke, Field, Greeley," &c., &c. It 
alludes to Mr. Opdyke's appeal to the law, refers to the answer in the McNeil suit., and 
then speaks of what may be called the Gibbs' swindle by way of parenthesis. Then it 
says that Mr. Opdyke may enlarge the field of his inquiry by embracing the alleged sale 
vof the office of Surveyor for $10,000. Of course Opdyke had no office to dispose of, and 
,!it.was his influence that was referred to. Then, as a sort of appendage, shoddy blan- 
kets are mentiored rejected in New York, but worked in subsequently at Philadelphia. 
Now, strange to s-ay, not a single witness had been examined as to what shoddy means. 
Undoubtedly it means inferior blankets, and you have the evidence of the plaintiff's 



/^/ 



13t 



trying, after one rejection, to put them in. Thns the garments made of inferior cloth 
were finally thrown into the consumption of the army. There was no imputation that 
the plaintiff corrupted any of the officers of the Government. The jury were to put no 
violent construction upon the language, but take it in its natural force of the words. 
The article then replies to the Evening Post about the navy agency, and to Mr. Field's 
response in the newspapers to tlie Tribune, and again to the Eveimig PosVs sneer about 
Mr. Weed's representing our public interests abroad. Then, with modesty and truthful- 
ness, Mr, Weed disclaims any special fitness for that or any other post, and states his 
constant refusal to accept high places. Ail these alleged libels are responsive to attacks 
in which Opdyke had joined, and they are limited to statements of fact in temperate 
language, in strong contrast to the expressions "burglar," and "fellow," and "dis- 
reputable," that had been heaped upon him by the confederates in this combined at- 
tack. Now, the jury, in construing these libels, were to regard them as a part of an 
animated newspaper controversy, in which recriminations were involved on both sides. 
During the recent political campaign men were denounced on one side as traitors, and 
on the other as miscegenators. A bar-room controversy must be regarded in a different 
light from an obtrusion into a gentleman's parlor by vehement aspersion. Now, in re- 
gard to the proof, counsel might pass over, as already suflBciently discussed, the Mariposa 
affair, and leave to ^he jury whether the $2,400,000, the $700,000, and the $500,000 
that was taken fro: General Fremont, had not been fully shown, and whether those 
were not pretty large slices out of his estate, and enough to satisfy the exaction and ex- 
tortions of anybody. The estate had already produced $3,000,000 in gold, and was sup- 
porting a numerous population. The embarrassment grew out of tlie inability of Fre- 
mont to wield it under its debts and the exliausting rate of interest. Owning five-eighths 
of the property, three-eighths being owned by lawyers in California, he is ready to give 
one-quarter of the whole, or two-fifths of all he owns, to Messrs. Ketchum, Opdyke, and 
Stevens, to secure the rest. Out of 62,000 shares he is to have at least 37,000. His 
proposition to Stevens is that Stevens should have that 25,000 shares to deal with. When 
Stevens comes to Ketchum and Opdyke they tell him they want that 25,000 shares them- 
selves, so they send liim back to get out of Fremont's 37,000 something more. Here be- 
gins the departure from General Fremont's munificent proposition. Stevens say to Fre- 
mont : These people are going to take the whole 25,000, so you nmst give me enough to 
pay the lawyer's fees, &c. Finally, Fremont agrees to give him 7,000 shares more.- 
Now, it is claimed as a sufficient answer in regard to Mr. Field's fee, that it was not ex- 
acted out of Fremont, but out of Stevens' 7,000 shares. But it was necessary to include 
the 2,000 in the 7,000 shares. I find no fault with Mr. Field's fees, but I d"o find fault 
with his saying that it was not worked with any exaction or increased extortion upon 
General Fremont. Now we have got to Fremont's giving up 32,000 out of G2, 000— more 
than half his property. They say to him, " You have got 35,000 left; you must put 
25,000 into our hands to secure our control." That made 57,000 shares in their hands, 
leaving Fremont5,000. One would suppose thatall this involved a considerable amount of 
concession to the necessities of his situation, and his eagerness for settlement. I agree that 
it was good advice on the part of his friends that he should get his property back. Why 
didn't he get it back, except that a new occasion was made for taking more shares out 
of him? They said, " We will give you back 20,000 shares (why not 25,000?) but only 
on condition that you will sell us 5,000 at $25 a share." And yet it was selling for $55. 
So they succeed in getting hiiu to part with 500 additional shares, for which they pay 
him only half what it is worth. Now Mr. Field's fee is none of my business, but yet it 
must be a subject of comment publicly. We don't object to the amount, but we do ob- 
ject t» his not admitting it to be a large fee. [Laughter.] We never had any such fees, 
and never expect to have. The diflSculty with all this matter is, that $200,000 
is not anything, $2,500,000 is not anything, and $700,000 ia not anything. If separated 
they are not anything. Then any child knows that when added together, they are 
not anything. So we have this owner of 62,500 shares coming out with something like 
20,000. It is nothing ; he is lucky to get so much. He has got these men's money in hia 
pocket — money that they have left him, and which they ought to have had ; and now 
that he is clear of the concern, he is asked whether they took anything more than they 
required, and he says he thinks they did not. [Laughter.] Well, I believe they didn't 
take anything more than they asked for, and I don't think they took anything less. Is 
a sheep any the less fleeced by the clipping because before its shearei's it is dumb? 
[Laughter.] That is the whole of this story. It is for the jury to say whether there was 
not a little exaction in it. In examining Fremont, I asked him who paid him for the 
500 shares. He said Mr. Hoey. I inquired, " Didn't Opdyke bear a part of it?" This was 
objected to. I supposed there might have been 3 checks, but it turned out that both 
the checks were Hoey's. So we failed then to connect Opdyke with the transaction. 
Then we sent for Hoey into the enemy's camp. We put him on the stand and asked him, 
" Did you pay for that stock?" "Yes." " With your own checks ?" "Yes." "Who 
contributed to that payment?" Here my friend interrupted and said it was due to the 



J3S 

administration of justice to protect the witness against this inquiry into his private 
affairs. But the Court said he might answer, and the witness said one-third was paid by 
Ketchum, one-third by Opdyke, and one-third by himself." That was a probing of his 
private affairs that alarmed my friend, who knew what his answer was to be. You don't 
need to eat a whole loaf to find out that it is sour, nor to take out all the spots or in- 
-jured portions oi cloth to ascertain whether it is shoddy. Now we come to the con- 
tracts. We are not talking about Mr. Stewart's having contracts. He is not an em- 
inent public character, he has not gone into public service, he is not a seeker after 
nominations, or a candidate for public ofiBces. He is a plain dry-goods merchant. But 
here is a patriot, a statesman, an inveigler against corruptions and charters of 
Catalines, who, in 1863, said he had no connection, direct or indirect, with 
contracts or business with the Grovernment, and that any supposition to the 
contrary was pure imagination. This man goes to work to . find fault with Mr. 
Weed for having at an early stage of the war, had some connection with chartering 
a steamboat. The question is whether, for personal gain and advantage, Opdyke 
has large dealings with the Government. There is only oue way for a tolerably honest 
and honorable man, and that he is sure that every contract with the Government is in 
his own name ; so proposed, so understood, so known to his political friends and oppo- 
nents. Mr. Opdyke, as Mayor of the city, divided his conscience between the acquisi- 
tion of private gain and the concealment that would injure his public reputation and in- 
fluence. When a man undertakes to serve God and the devil, he must expect to be criti- 
cised for it. When a man thanks God that he is not like these other republicans and 
sinners, and is exposed, people will have tlieir judgment about him. He must choose 
whether he will go back to his counter and increase his fortunes, or forswear sack and 
live cleanly. Now, what do we show? Enormous transactions. In twenty months, 
from September, 1861, to May, 1863, a long list of contracts in the name of a single man, 
Carhart, to the amount of five millions of dollars, out of which Mr. Opdyke's firm makes 
$172,000. But to this we have the same answer, "it is nothing." There is the_same 
morbid, arrogant, offensive disregard of all our common-place, every-day notions of 
" honest gains ; of our old-fashioned rules and requisitions against public men ; our old- 
fashioned ideas of moderate and sober accumulations of fortune. In answer to the 
statement that these parties did not make large fortunes out of General Fremont, but 
out of Mariposa stock, it came to this— that if they did not make it out of General Fre- 
mont, they made it out of the public. What was there in this view of Mr. Opdyke's con- 
duct to be approved, .or to enhance damages for exposing him, in the avowal that ten 
millions was put out as a mine, a springe, a net to catch unwary customers with ? And then 
all the purchasers to sell out and retire, and "Mariposa" stand at 16 instead of 75 — and that 
its true value. Then we come to the Surveyorship. That is "a short horse and soon cur- 
ried." There are only four persons who knew anything about it— Andrews, Opdyke, 
McNiel and Williamson. It had become a matter of rumor that there was a bargain of 
this kind ; that Opdyke was to give his influence to Andrews to secure the Surveyorship, 
in return for which Andrews was to use his place to raise $10,000 for Mr. Opdyke'selec- 
tion. Every one knew that Mr. Opdyke had received the $10,000 from the Custom- 
house ; every one knew that no assessment had previously been made for a Mayoralty 
election ; and people wondered how Opdyke smote that rock, and this stream of money 
rushed out. Now, the two disinterested witnesses, McNeil and Williamson, confirmed 
each other as to the whole matter of this bargain. Was it to be expected that the par- 
ties to this arrangement, when they appeared on the stand, would confess what they 
had done, especially when one of these was, as Mr. Opdyke had very truly remarked, 
a "practical politician," and a lawyer to boot. * 

Counsel reviewed the testimony of Andrews to show that the circumstances of his 
interviews with McNeil and Williamson, as elicited on cross-examination, fully confirmed 
the testimony of those witnesses, and could not be reconciled on any other theory than 
this bargain with Opdyke. The whole arrangement was as plain as anything could be, 
and not to be shunned in the absence of a written contract. The cue of these political 
friends was, " You boost me into Surveyorship and I will pull you into the Mayoralty. 
And the difficulty with Mr. Opdyke has been, that until these things were disclosed and 
commented upon in broad, trenchent light, the true character of the transaction, to 
wit: a sale of his influence to help himself to office, did not occur to him. Oh ! he says, 
it was done for the public good— to get a bad Mayor out and put a good Mayor in ! 
Well, the interest which the. city took in the matter was shown by a contribution of 
$2,500, while the candidate, as he says, advanced $20,000, only a portion of which he 
succeeded in getting back by this levy on Custom-House officers. There are men quite 
willing to bear their share of party contributions for public purposes, without a per- 
sonal object. That is a public use of private money, honorable, and if properly ex- 
pended in conducting our government by the franchise, beneficial. I have known men 
quite willing to contribute to the election of others, who would cut off their right hands 
before they would contribute one dollar of their own money in an election in which 



^u^ 



139 



theywere to have a sufi'rage. You can understand that distinction? But it was too 
nice a distinction for Mayor Opdyke to appreciate. Next we come to the government 
contract. Mr. Opdyke, after becoming Mayor of the city, entered into a gun contract, 
which perhaps was unwise and unprofitable. The factory, in which he had the principal, 
almost the whole interest, was destroyed by rioters, and undoubtedly he was entitled 
to indemnity from the city. But what, under these circumstances, should an honora- 
ble man, determined to keep his name free from reproach or imputation, have done? 
It was no longer a question whether he should conceal his connection witli the United 
States Government. It was now turned into a claim against the city of New York. He 
should have said, " It will not do for me, the Mayor of the city, to go on in this nominal 
way — to have ray interest appear in an obscare or doubtful manner, or another name- If I 
am going to recover from the city of NewYork--I, being Mayor, will do it in my own name, 
so that there may be no misconstruction, and that my fellow-citizens will see it is my claim." 
But what have we ? Mayor Opdyke, instead of presenting the claim in his own name, for 
the whole amount, treating it as his own, according to his own evidence, only spoke of 
his interest in it on one occasion; and then to Mr, Purdy, a Supervisor, urging that it 
was a large sum of money to lie out of, and if it could be urged forward he would feel 
gratified. The condemnation, as taken from his own lips, was complete. He concealed, 
he suppressed, he left in doubt the fact of his paramount interest, and left it to be sup- 
posed that Farlee was the party in interest. In the newspaper accounts of the day, in 
the record of the evidence, there is not anything to show that Mayor Opdyke ever had 
a claim or interest in a claim against the city of New York. He appears before the 
committee, speaking of his interest, as if it were an indeterminate one ; leaving the in- 
ference that Farlee, his son-in-law, was the owner of the claim ; and then he says to 
them, "I have told Farlee to be very careful and accurate ; I do not know anything 
about the details." Although here he acknowledges that, as to the only question in dis- 
pute, he knew all about the principle of including profits, and disguising the form of it. 
Yet this was not concealing, suppressing, and sidling along the claim, under his high 
character as Mayor ! He has told us his own story and given us his own measure of the 
dignity and propriety due to his character. I never saw a witness of greater courage 
or better judgment. .He takes the responsibility up to the very verge of safety in regard 
to those matters where there is no counter evidence. On the gun claim, everything 
being proved, he accepts it, and puts it upon the ground that it was all right and proper. 
No'W' the question was not whether the claim against the city were a proper one, merely 
—but the manipulation and way of presenting it. Suppose for a moment that it was 
right to include profits, as well as capital advanced, — why Avas not that claim brought 
squarely and fairly before the committee ? Why conceal the question of profits under the 
cloak of charging for the guns at Government prices, less the cost of completing them? 
Mr. Blunt, than whom no man knew more about guns, was deceived by this acute means of 
getting at profits and patentee fees on guns that were never finished. Would it not have 
been more fair and honorable to state it to the committee exactly as it would be stated be- 
fore a jury, raising the question whether profits should or should not be allowed ? Then 
Mr. Blunt, who says he dismissed the claims of poor men, who claimed for prospective 
profits in the shape of labor, in less time than it took to sell it, might have known what 
he was doing, and dismissed this claim, or said : " Mr. Opdyke, we will allow your pros- 
pective proiits on these guns — take your check for $199,000." But this was not a proper 
or allofvable basis on which to make a claim against the city. It was made up on the 
principle of having dollar for dollar on an investment that (as Mr. Blunt stated) sank 
90 per cent, of capital, and then getting full profits that would have been made had the 
guns been completed. As well might the druggist who was burned out, make up his 
claim on the basis of charging for what his pills would have brought when made up and 
sold, deducting the expense of converting his drugs into that shape. As well might the 
shoemaker, who had a large number of skins on hand, and who had a large piospeotive 
custom, charge for what the leather would have brought when made up into shoes and 
boots, and then deduct the cost of labor. 

The remarks of Mr. Evarts were brought somewhat abruptly to a close, by Mr. Henry 
Harris, a juror, rising and stating to the Court that he hoped the law was not going to 
make him break his religion as a Jew, by requiring him to sit any later. 

Judge Mason said he was not aware of anything in the Divine or human law that 
made the Sabbath commence at four o'clock. 

Mr. Haekis repeated, somewhat excitedly, that he was a Jew — that he had always 
kept his Sabbath, and he would not break it for any law ; that he would leave, whether 
the Court gave him permission or not. 

Judge .VIason said that while he had every respect for the religious opinions of the 
members of the Jewish persuasion, and had given up sessions on Saturday to accommo- 
date them, yet this trial had been so often broken in upon, and so much prolonged, and 
as there was nothing in the Mosaic law or the statutes fixing this hour, he should insist 
upon the juror taking his place until the adjournment. If he left without permission of 
the Court, he would be compelled to fine him, and commit him to the Tombs. 



140 

Mk. Emott suggested that the juror did not mean disrespect to the Court, but that 
the Jewish Sabbath commenced at sundown, and it was now so near that time, they 
might, perhaps, as well adjourn. 

Adjourned to 10 o'clock on Monday. 



"§i ' EIGHTEENTH DAY. 

MONDAY, JANUARY 9tH, 1865. 

ARGUMENT OP WIL.LIAM M. EYARTS FOR DEPENDANT (COJ^CLUDED). 

At the opening of the Court, this morning, Mr. Evarts, before resuming his 
consideration of the topics which he was examining at the adjournment en Friday, made 
some suggestions as to the legal rule governing the claims of parties against the city for 
property destroyed by rioters. The claim of the owners of the armory, destroyed on 
13th of July, 1863, against the city of New York, was based on the statute of 1855 ; and 
the measure of such claim is the actual value of the specific property destroyed at the 
time of its destruction, and in its mere quality as property, without. any allowance for 
use and enjoyment, or for gains expected or accruing. The relation of the county is 
that of an insurer or indemnator. (2d Philips, p. 56, citing Laurent vs. Chatham Ins. 
Co., 1 Hall, 41.) Addressing the jury, Mr. Evarts resumed his consideration of the 
"•Gun Claim " against the city, and passed to the machinery and tools. There were no 
difQculties in presenting a complete account of the tools and machinery, the material 
and the articles in an unfinished state ; for these elements had to be considered in mak- 
ing up the claim in its present shape. The proper way was to set down the schedule of 
machinery and tools, and giving its value as it stood at the time of its destruction. Set- 
ting down the articles at their value, they would then come to the portion of the car- 
bines which had a fixed price, then the labor expended, and thus the claim would have 
been made distinct and clear, beyond the material and labor, of over S20,000 for paten- 
tee's fees on arms that had never been complete:!, and also the profits expected on future 
construction of the guns. But how does the claim for machinery and tools appear to 
have been made ? The principle and result, as exhibited in the schedules, was no^ to 
give values, but dollar for dollar, all that had been expended by the capitalists and 
speculators on the subject contained in the schedules. In the statement of the claim be- 
fore the Board of Supervisors there was no suggestion that the cost of 1,050 guns deliv- 
ered to the Government was not included. An opportunity of explanation was offered 
to Mr. Farlee and Mr. Opdyke, and the.y failed to give it. All the expenditures were 
considered at the cost of making the 6,000 guns, and in that view there was an absolute 
suppression and exaggeration of tLie claim by what appeared in the general expendi- 
tures and outlay as attributable to the 1,050 carbines being carried to swell the cost of 
the 6.000. Suppose certain machines had been sold, would it not have been dishonest 
not to have deducted the product of their secondary sale? The $185,000 should have 
had a reduction by the $15,000 received from the Government, but which being balanced 
in the cash-book does not appear as a reduction. Counsel adverted to the attempted 
impeachment of Mr. Stover. Of course it would not have been attempted had his testi- 
mony been unimportant. But the witnesses who were brought to impeach him were 
not much acquainted with him, and the attempted impeachment was a failure. Mr. 
Gibbs said that in the claim as presented to th-e Board of Supervisors there was a large 
swindle. Was there not an artifice in the presentation of that claim? It was a delibe- 
rate artifice on the confession ofthe plaintiff. All the sums put in were put in as cost 
and not profit. There was not a lisp of the money got from the United States Govern- 
ment, nor of the portion that was to go to the patentees, nor ofthe profit to the 
owners. And when the claim was paid the patentee was kept out of his portion 
on the principle of " equity." The testimony before the Board of Supervisors was 
taken down, read over to the witnesses, and by them signed, and now the plaintiff 
wanted you to read it all backward, with this and that interpolated. Mr. Weed 
based his allegations upon the testimony as it was rendered, and for so doing 
he was held for accountability at this tribunal. The question was, had injustice been 
done by the defendant to the plaintiff, by the narratives which appeared in the public 
prints ? The evidence showed that Mr. Weed was the assailed party, and that he under- 
took to unmask his assailants, among whom was the plaintiff. And from testimony 
drawn from the friends, employes and dependents of Mr. Opdyke, the facts upon which 
the charges rested, had been abundantly shown. The plaintiff had overlooked the fact 
of his public relations- He had put himself on the level of Farlee, McNeil an 1 Jones in 
the gun contract, and treated himself as under no obligation of strict official duty, of 
honor, of dignity, of public spirit, of public character, toward this community. So, 
likewise, in rega,rd to the Mariposa matter ; Mr. Opdyke had treated himself as a private 



141 

individual, and not in his assumed position of devotion to the public interests and the 
public good. So, too, in regard to the Surveyorship ; he put himself on the level of the 
common plotters to secure office by means of money, political management and strategy. 
He never had been a subject of comment by the defendant, except in the light of his 
public relations, and of his ostentatious and paraded claim that he had no connection 
with these kinds of pursuits since he became a public man. And what was his justifica- 
tion ? That he was not a thief, a robber, a forger, an escaped felon? If a man displays 
himself for admiration, he must run the risk of admiration. If he is afraid of the glare 
of the footlights, let him shoot the pit. Diogenes sought for an honest man with a lan- 
tern. We, in our joy at the discovery, have placed two lanterns at the doors of our 
Mayors, and Fernando Wood and George Opdyke are the latest ilhistrations of our suc- 
cess. [Laughter.] They come, one after the other, from opposite parties, so that we 
can feel no disappointment of party feeling. We made them, and we must stand by 
them and share their fate. How much came from placing rich men in oflSce? Princi- 
ple, character, moderation, self-control, are the test whether a man be rich or poor. 
Many a poor man has remained poor because he has been shifting, vascillating, and 
either actually dishonest, or so near it, that he never was trusted. These evil habits 
are quite as likely to grow upon what they feed upon as to become eager from absti- 
nence. It was out of a crowded harem that King David desired Uriah's wife. Thia 
case is already decided. The evidence has been impartially displayed by the press and 
promulgated all over the land. The question is not so much what the evidence or con- 
clusion is, but whether you and I and all of us have virtue enough of our own to put 
a true standard of measurement upon this transaction. We have a maxim in our law, 
that when the guilty escapes, the tribunal that tries him is convicted. So it will be 
with us to-day. It is the measure of our judgment that is asked for. You have that 
issue in your hands. You have the keeping of the public fame, public character and 
public safety. Now if you like this kind of public men, or public conduct, and think 
that evil has been done to this community by the comments and denunciation of the de- 
fendant, clothe the plaintiff, as he asks you, in the purple and fine linen of your applaud- 
ing judgment, put the golden chain of your favorable verdict about his neck, carry him 
from this court-room on your Ajax shoulders, blow your sycophantic trumpets for him, 
and proclaim, until it shall ring through the land, as my friends say, " Thus shall it be 
done to the man that the people delight to honor." 

Sound him victorious ! ( 

Long to reign over us, 

Opdyke the glorious ! [Laughter.] 

Or rather, excuse me for a wild imagination as to a verdict that could be looked for only 
from a jury empanneled in a mad house. All know that the lapsing virtues and sinking 
fortunes of this community rest in your hands. Know and teach that the freedom of 
the press is the death of sham patriotism and the grave of public corruption, and that 
there is nothing to be looked for in a verdict of a jury that shall withdraw from this 
death its sting, and rob this grave of its victory. [Applause.] 

The Court — We must have no more of this in the court-room ; it is not the place for 
plaudits. 

ARGUMENT OP D. D. FIELD, ESQ. 

Mr. Field addressed the Court and Jury for the plaintiff: 

This trial has lasted so long, it is so important to the parties, it has excited so much 
Interest out of doors, and, more than all, it is of such consequence in its relation to the 
administration of justice, that I shall not conceal my solicitude for the result. Ihave 
no doubt whatever that the plaintiff is altogether blameless, in word and deed, in re- 
spectto every transaction brought before you, properly or improperly, in this long and 
discursive trial. I have as little doubt that the defendant is a wanton and malignant de- 
famer, who has assailed the plaintiflf for being in the way of his own evil deeds and evil 
purposes, but I am to learn by your verdict what vigor yet remains in the law, and how 
far a libeler can be restrained and punished. Your oflSce, gentlemen, is the greatest 
that can be placed in human hands. An English historian has written that the last ma- 
chinery of the English Government ended at last in putting twelve men in the jury box 
to decide upon their oaths. This is as true of America as of England. Even this Titanic 
conflict which shakes this continent from sea to sea, had for its purpose and end the 
execution of the laws. The purity and dignity of the tribunals, the learning of the 
judges, the wisdom and firmness of juries, are the aim as they are the proof of our ci- 
vilization. If any extraneous influences were permitted to enter the courts of justice, 
any pressure from without or any claim within, it matters little what may be the form 
of government. Here we are to hear nothing and know nothing but the law and the 
testimony. The duty of the jury was never better told than in that ancient formula of 



142 

the law, with which they were addressed when they were empanneled : " Good men and 
true, stand together, and hearken to the evidence." You are gathered together to pei-- 
form a great public duty, never, probably, to be assembled again. The act which you 
are to perform will live in its effect upon the public, will live in the memories of men, 
not only long after you shall have separated, but long after yon have all been gathered 
to your fathers. The libels for which this action is brought are two in number — one 
published in the Albany Evening Journal on the 18th of June, 1863, and the other in the 
same paper on the 25th of the same month. [Counsel read the libels.] To the com- 
plaint for these successive libels, put forth with great deliberation, under the defendant's 
signature, in a journal of large circulati n and influence, the defendant makes in his 
written answer three defenses, or what he claims to be defenses — first, that the state- 
ments are true ; second, that he was provoked to make them ; and third, that he made 
them upon due investigation. Of these three defenses, set forth with all gravity, there 
is not a particle of evidence as to the two last. The defendant was not able to produce 
any legal evidence of provocation, and he did not venture even to offer himself as a 
witness to prove that he made any investigation or inquiry to ascertain the truth of his 
charges before he made them. The only questions that remain, therefore, are the truth 
of the charges, and if they are untrue, what damages the defendant shall suffer for hav- 
ing made them. Let us, then, take them up and compare them with the proof. They 
maybe divided into four classes: 1. The alleged misconduct in respect to the claim 
against the county of New York for the daninges caused by the rioters in the 
destruction of the armory. 2. The alleged misconduct in respect to the appointment 
of Mr. Andrews to the office of Surveyor. 3. The alleged exaction and extortion from 
General Fremont. 4. The alleged frauds on sales of army clothing to the Government. 
We will begin with the claim for damages caused by the destruction of the armory. 

It would not be easy to crowd into the same number of words a greater number of 
falsehoods than are contained in the part of the libel relating to the armory. Let us 
read it again and compare it with the proof. 1. Weed says that " Mayor Opdyke was 
by virtue of his office a member of the committee before which this claim was allowed." 
This is untrue, every word of it. The Mayor was not by virtue of his office a member 
of the Board of Supervisors, or of any of its committees ; he was not made such by 
appointment; he was not a member at all. 2. Weed says "that Opdyke disclaimed 
any interest in the gun claim." This is false. Mr. Opdyke never, at any time, or un- 
der any circumstances, disclaimed an interest in it ; on the contrary, he proclaimed it 
on all proper occasions. The armory was called Opdyke's armory for months before 
the riots ; it was designated as his in the account of its destruction given by the news- 
papers the day after ; the nature of the claim and his interest in it was published in the 
Evening Post by authority of Mr. Opdyke himself ; the day the claim was presented, 
Mr. Purdy, one of the Supervisors, was informed of it, while the claim was pending be- 
fore the committee, and when it was called up. Mr. Opdyke being invited to attend, 
came into the room and excused himself from remaining by informing the whole com- 
mittee there assembled that, having an interest in the claim, he could not with propriety 
remain. 3. Weed says that " Opdyke sat on the committee investigating the claims of 
his son-in-law." Every word of this is false. 4. Weed says that " Mr. Opdyke refused 
to divide profits fairly, and Mr. McN^eil, member of the present Legislature, commenced 
a salt against George Opdyke for a sixth part of the $190,000." Here are three false- 
hoods in one sentence. Mr. Opdyke did not refuse to divide profits fairly — he offered 
all the profit-. McNeil, member of the Legislature, did not commence a suit. Mrs. 
McNeil commenced one. It was not for a sixth part of $190,000, but for about $19,000. 
I will not stop to observe, as an evidence of the recklessness with which Weed wrote 
this libel, that though the documents showed the amount received from the city to be 
$199,700, he cared so little for accuracy as to put it at $190,000. 5. Weed says that " in 
presenting this claim to the Supervisors, Opdyke declared that he had no pecuniary 
interest in it." This is every word of it false. Mr. Opdyke never made any such 
declaration, and, indeed, never presented the claim to the Supervisors. 6. Weed says 
that, in answering McNeil's complaint. Mr. Opdyke " avers himself the owner of the 
share claimed by the plaintiff"." Mr. Opdyke did nothing of the kind. A copy of the 
answer seems to have been given to Weed, and he therefore knew better. 7. Weed 
says, " this, therefore, is Mayor Opdyke's position, to qualify himself to act impartially 
and honestly for the taxpayers of New York, on a committee he disclaims being 
interested in the gun claim." This is false, like the rest. Mr. Opdyke did not 
qualify himself, nor attempt to qualify himself, to act dn the committee ; it has 
already been shown that he did not disclaim being interested in the claim. 8. Weed 
says, that before the claim was paid, Mr. Opdyke had repudiated " his owership 
of the largest share." This, too, is utterly false. Driven by these proofs of his false- 
hoods the defendant retreats to the claim itself, cries out, well, if I did make all these 
false accusations, nevertheless the claim was unjust. This would not protect him if it 
were true. A defendant cannot justify eight false accusations by showing that the ninth 



/^^ 



143 



is true. We will, however, pursue him into this retreat, and see if it will shelter him. 
What he says in the libels about the claim itself, is contained in these two sentences, 
one in the first libel and the other in the second : " It is alleged that $25,000 received 
from the Government the contract was forgotten in making up the claim against the 
city ;" and " Mr. (iibbs, the carbine patentee, says that, in the claim submitted to the 
Supervisors, on which $196,000 was paid, there is a large swindle." You may observe, 
by the way, that he has got the amount a little larger now, though he does not even 
yet condescend to state it correctly. At first he gave it as $190,000; a week after he 
gave it as $196,000. Perhaps in the next libel, if he venture upon one, he will get up 
to $199,700. Here are two sentences, one of which puts the defamation in this form: 
" It is alleged that $25,000 was forgotten," and the other in this : " Gibbs says there is a 
large swindle." These charges are not to be justified by proving that somebody alleges 
one thing and Gibbs says another. The law does not allow a man to libel another in 
this cowardly manner. The truth of the thing alleged must be proved. Thus regarding 
these charges, I will consider them together. They both charge a fraud. The forget- 
fulness mentioned in the first sentence is intentional forgetfulness. The defendant is 
obliged, therefore, to prove that the claim is illegal, unjust, and fraudulent. A " swin- 
dle" is a gross cheat, accomplished by artifice. The defendant must convince you that 
the claim is not only illegal and unjust, but that the plaintiffknew that it was so, and 
procured its allowance by gross artifice. I might content myself with reminding yon 
that every person interested in the claim ; every person concerned in getting it up ; 
every person voting upon it, supposed it was legal and just. Jones, one of the defend- 
ant's principal witnesses, suggested it, and declared on oath that he thus considered it, 
and does still consider it legal and just, and made upon the correct theory. Keene, 
another of the defendant's witnesses, gives the same opinion, and says he would swear 
to it till he was blind. The book-keeper who made it up swears the same thing. Mr. 
Farlee and Mr. Opdyke both affirm upon oath the same opinion. Would it not, there- 
fore, be unjust and cruel to fix upon the plaintiff" the stigma of having designed the per- 
petration of fraud, even if the claim should be pronounced untenable? But I will not 
stop here. I will accept the challenge of the defendant's counsel, to try this claim as if it 
were a suit against the city to recover it, and I undertake to show, not only that the claim 
was all of it recoverable, but that it was less by a large amount than might have been just- 
ly demanded and recovered. To this point.divested of all other circumstances, I no w invite 
your attention. The purchase from Marston was made on the 1st day of December, 1862 ; 
the property was appraised bv two appraisers, one of whom was Mr. Colby, a member of 
the well-known firm of R.fM. Iloe & Co. It amounted to $92,135.02, wfiich was about $10,000 
less than it had costMr.M;irston; Mr. Farlee paid $91,154.06 for the whole. Of this proper- 
ty there remained at the time of the fire, $?7,093.31 in value, estimating it at the same 
price which had been paid to Mr. Marston. Between the 1st of December, 1862, and the 
13th of July, 1863, the time when the property was destroyed, there had been added 
machinery, tools, fixtures, &c., purchased or manufactured, amounting to $30,836.38. 
These two sums made $97,929.69, which are put down as the total value of the property 
exclusive of the carbines manufactured and in process of manufacture. The number 
of manufactured carbines was 500, and these put at the price for which they were sold 
to the government, that is, $.'4.70, amounted to $12,350. There were 5,500 carbines in 
the process of manufacture at its different stages, some of them, the most advanced 
with all their parts complete and ready to put together, and others, the least advanced, 
all forged and inspected but not machined. The principle upon which the claim for 
these unfinished carbines was made out, was to charge them at the price which the 
government had contracted to pay for them, less what it would cost to finish them. 
Thus estimated, they amounted to $98,215. The claim, therefore, consisted of these 
four elements : 

The machinery and tools bought of Marston $67,093 31 

The machinery and tools subsequently required 30,836 38 

The 500 finished carbines 12,350 00 

The 5,500 unfinished carbines 98,215 00 

Total $208,494 69 

Deducting proceeds of the sale of damaged machinery $2,214 98 

And adding 593 bullet-moulds 783 00 

1,431 98 

Left the total claim at ; $207,062 71 

The Supervisors reduced the amount by taking off. 7 ,362 71 

Andawarded $199,700 00 

This claim has been attacked in two respects, first, in respect to the value of the 
tools and machinery, and, second, in respect to the value of the unfinished carbines. 



«• \ 



v'W 



144 

It has not been alleged that thei'e was any error in the number and kind of the arti- 
cles charged as destroyed ; but in the values afiQxed to them. Here let it be observed, 
at the outset, that the libel assailed only the claims for the unfinished carbines. The 
defendant's article spoke of the claim for " damages sustained in the destruction of 
guns in the process of manufacture." He could, therefore, have had no idea atthattime, 
that there was anything wrong in the residue of the claim. And even down to the 
trial, neither he nor his counsel appears to have had any such ideas. The junior coun- 
sel, in his opening that monstrous tissue of aggravated libel, took occasion to say, ex- 
pressly, that the transaction between Mr. Opdyke and Mr. Marston was " an honest, 
fair, and just one." It seems to have been reserved to the brilliant genius of Stover to 
discover and convince Weed and his counsel that the transaction was dishonest, unfair, 
and unjust. But let us examine it for ourselves, and in detail. First as to the tools : 
Mr. Colby valued according to his excellent judgment all the tools purchased of 
Marston, and he testifies to the correctness of the value put upon them. He also 
testifies that the machinery was valued at its cost, the bills being exhibited to the ap- 
praisers, and the different articles verified as on hand, and in good order. His testi- 
mony in this respect, is corroborated by that of Marston. To disprove it, the defendant 
brought forward Stover, whose testimony on this point failed altogether. He declared 
that eight diflferent articles of the machinery were bought by Marston of him at prices 
less than those charged, the difference on the whole being $228. The bills, however, 
were produced the- next day, and they showed that Stover's testimony was utterly false. 
He notified farther that certain other articles, which he did not sell to Marston, were 
overcharged. He could not know what they were sold for, since he did not sell, but his 
estimation of the prices as proved to be false. His estimate covered only eleven 
items out of several hundred, and seven of the eleven, if his testimony were leliable, 
would make only a diflerence of $558. This should be enough to put the value ot the 
things in the stocking-room beyond dispute. Another of the four items is for the main 
shafting, including pulleys and hangers, which is charged at $1,681 16, which Stover 
says should have been charged at $640. But it appears that he himself sold less than 
half of it, and Mr. Marston, Mr. Colby and Mr. Parlee, all testify that the whole cost 
$1,681 16. The third item is for putting up and adjusting counter-shaft of sixty-five 
machines, which is charged at $1,495, by which Stover says should have been charged 
at $S a machine, making, according to his computation $450. His estimate is as false 
as his arithmetic according to the testimony of Marston, Colby and Farlee. There can 
therefore, be no doubt that all the tools and machinery specified in the claim, as hav- 
ing been purchased by Mai-ston, were in the building when it was destroyed, and that 
Mr. Farlee paid for them, not only all that is charged but much more. We thus estab- 
lish the justice of the claim to the extent of the $67,093 31. Let us now go to the next 
class, that is, the tools and machinery purchased and manufactured from December 1, 
1862, to July 13, 1863. It will be remembered that all the books and papers of the es- 
tablishment, except the cash-book and a ledger since found, were burned in the fire. 
Mr. Farlee, the proprietor, Mr. Keene, the Superintendent, and Mr. Paret, the book- 
keeper, were therefore obliged to make out the list, partly from memory and partly 
from the charges in the cash-book. They did so. Every one of them said he did it 
concientiously, with all the accuracy and minuteness that was practicable, and at the 
cost appearing upon the cash-book. Stover, however, obtrudes liimself also into this 
schedule. He says that the charge for 29 tool hands is too large ; that instead 
of 29, there ought only to have been 2. He of course did not know how many 
there were in the establishment; he infers or guesses that two were enough. 
On the other hand Mr. Keene, Mr. Paret, and Mr. Farlee, all testify that they 
made up the charge from their own knowledge ; they called the tool hands by 
name and counted them, and they were all fully employed. It is suggested, however, 
rather than attempted to be proved, that these hands were employed in repairing 
as well as making tools, and that the cost of repairs ought not to enter into the price 
of the thing repaired. To answer is two-fold, first, that there were no repairs but ordi- 
nary ones, and those of very small account; and second, that the cost of repairing, 
from ordinary wear and tear, does enter into the cost and value of a manufacturing es- 
tablishment. The amount of ordinary breakage in many kinds of business, that of deal- 
ers in crockery, for instance, enters into the price of the articles sold. Without estimat- 
ing that, an;! putting it upon the unbroken articles, the dealer would soon find himself 
in a losing business! It thus appears that the machinery purchased of Marston, aud the 
machinery and tools afterward purchased or manufactured were put down at their ac- 
tual cost, and that the tools purchased of Marston were put down at their actual value 
as estimated by the appraisers, of whom Mr. Colby was one. The attacks made upon 
these two schedules, therefore, fail entirely. Their amounts are $97,92!). C'J. Au at- 
tempt, however, has been made to show that these tools and machinery ought not to 
have been charged at their cost, but at a depreciation, because they had been used. 
They had been in use but a short time. The establishment had been worked only 



/^s 



145 

about five -weeks, and bad just begun to turn out its full complement of guns — fifty a 
day. Under these circumstances, every witness vcho has testified on both sides, afSrms 
that the tools and machinery were better, not worse, for the use thus made of them. 
Some of the witnesses do indeed say that if scattered and sold to third .persons, they 
would not have brought as much as when new, but that is not the test on its value; 
what was their pecuniary value to the ownerat the time of their destruction, is the true 
test. They had, in the present instance, increased largely in price, in common with all 
other gun machinery, for two causes, one, the great demand for guns arising out of 
the war, and the other the depreciation of the currency. The witnesses generally say 
the increase had been from 25 to 60 per cent. Taking it at 30, and we have the real 
value of the tools and machinery which the rioters destroyed, not $97,929.69, but up- 
wards of $127,000. The next charges were for the finished and the unfinished carbines. 
So far as the finished carbines are concerned, there is no complaint, but there is a great 
outcry against the charge for those which were unfinished. Why there should be an 
outcry against it I have never been able to discover, except in the disposition of a 
libeler to raise a cloud, under cover of which to escape the consequences of his defama- 
tion. The carbine in question was a peculiar arm ; nobody else had a right to make it ; 
nobody else could make it. The Government had contracted for 10,000 of them, 
and there was a fair prospect of its taking more ; 1,054 had been delivered and paid for, 
600 more wore finished, ready for delivery, and would have been delivered that day; 
5,500 more were unfinished in different stages of the proceeds of manu!"acture, and would 
h»ve been completed at the rate of 60 a day, the whole 5,500 in 110 days. As fast as 
finished and delivered, the Government was to pay for them, the price of the whole 
5,500, amounting to $135,850. It would cost $1.97 a gun to finish the first 600, $3.40 the 
first 1,000, $5.57 the second 1,000, $7.38|- the third 1,000, $9,46 the fourth 1,000, and $10.83 
the fifth 1,000; that is to say, it would have cost $37,635 to finish the M'hole, and on 
finishing, the proprietor would have been entitled to $135,860. They were there- 
fore nearly three-quarters finished. Under these chcumstances the defendant's 
counsel advances the strange, and as it seems to us, preposterous proposition, that 
Mr. Parlee was entitled only to the value of the separate parts of these carbines, 
separately valued, and the different values added together. Thus, for exam- 
ple, they take the five hundred unfinished carbines, all the parts of which 
were completely formed, and which only required to be brought together, assembled as 
it is called, to make the complete gun at an expense of $1 97. They say, we should va- 
lue the barrel by itself, the lock by itself, and so of each of the other sixty parts, and 
add their values together to get the amount to be claimed. We say, we should take the 
price of the carbine, as the Government was to pay for it, which was no more, as all the 
witnesses say, than its fair value, and deduct the cost of bringing the parts together. Is 
not ours the true mode? No other will compensate the manufacturer ; less than this is 
not an indemnity. If our mode is not the true one, then this result would follow — that 
while the owner of a complete gun can recover its full value from a trespasser who de- 
stroys it, yet if the owner has, perchance, taken it in pieces and laid the parts each by 
itself, to clean them, and they are all in that state destroyed, he can only recover of the 
trespasser the aggregate value of the separate parts, separately valued. The principle 
may be also illustrated by reference to another instrument of war, the iron-clad Bunder- 
herg, now lying unfinished in Mr. Webb's shipyard. The rioters sought its destruction. 
It was, however, saved . If it had been destroyed, what would have been the measure 
of Mr. Webb's claim against the city ? Would it have been the price at which it would 
sell in its incomplete state? That would be very little, probably not a hundredth part 
of what it cost. No merchant would have bought it. For purposes of commerce it 
would not have been worth a dollar. There would have been no market for it. The 
fair value of the structure is its value to Mr. Webb for purposes of sale to the Govern- 
ment ; that is, the Government price, less the cost of finishing it. 

The Court here stated that he had been impressed with the force of the counsel's 
argument, in assuming a certain price for the guns and deducting the expense of finish- 
ing them. But th,e difficulty in his mind was, whether the plaintiff- had a right to charge 
the city the price the Government waste pay, or the actual value of the guns. He had 
more doubt in regard to. that. The Government might fail, or refuse to take the arms,: 
and then thev might not bring so much in the market. 

Mr. Field said that he had questioned, two of the witnesses, at least, whether the. 
Government price was the fair value of the guns, and they said it was. 

The Court thought the evidence showed^ rather, that the|guns had no market value. 

Me. Field referred to the testimony, to showtliatit was as he stated. Then, turning 
to the Jury said : If there, is a doubt in. the mind of the Court, and he asks for authorities 
on this question, then there was certainly no swindle in presenting the claim on this 
basis ; thus was the claim made up. . When it came before the Supervisors, the examin- 
ing Supervisor directed his attention chiefly to another mode of estimating the value of 
the unfinished carbines, and that was their actual cost. Though that was not, as we 
10 ■ 



146 

." i " 

euppose, the true mode of estimating the value, it so happened that the amount claimed 
and the actual cost were nearly coincident. Whichever way the calculation was made, 
the result was the same. The elements of both calculations were stated in the testimony 
taken by the Supervisors. For the purpose therefore of silencing cavil, and disarming 
prejudice by reason of any supposed proSt of the proprietor, I will now show the finan- 
cial condition of the establishment. It will thus appear that the carbines actually cost 
all that was claimed, and more, and that when Mr. Blunt drew his conclusions from the 
cost, he drew them just as accurately as if he had drawn them from the price calculated 
by the Government. Here is the profit and loss account, from which you see that I am 
justified in all I say. The claim of Mr. Farlee thus made up amounted to $207,062.71. 
Mr. Opdyke did not make it up ; he entered into none of its details ; he was informed of 
the principle according to which the unfinished carbines were charged, and approved 
it; he rejected an item which would have swelled it; the only instructions or advice 
which he gave, was a caution to Mr. Farlee to put in nothing doubtful, and to err, if at 
all, in favor of the city, and beyond this he had no part in the making up, presentation, 
or proof of the claim. It was presented in the name of Mr. Farlee, because he was the 
legal owner ; the property stood in his name ; he alone sued for it ; he alone could have 
sued for it; his receipt and release was the one, and the only one, which could protect 
the city against a second claim. The interest of Mr. Opdyke, however, was well known; 
the armory had gone by the name of Opdyke's Armory long before the riot; the violence 
of the mob against it was on that account ; its destruction was announced in the news- 
papers of the next day as the destruction of his property, and when, on the 9th of Sep- 
tember, the claim was presented, it was announced in the Evening Post of the 10th of 
September, upon the information of Mr. Opdyke himself, that he was interested in 
it, and its amount was stated with all the items for the carbines, finished and un- 
finished, set forth at length. Notwithstanding liis large pecuniary interest, Mr. 
Opdyke refrained from urging it personally upon the Supervisors ; he was not a 
member of the committee, or of the board, and when, upon the occasion of their 
final action, he was requested to attend before the committee, he came after 
three successive messages, to their room in the hall, on the fioor above the 
Mayor's ofBce ; he stated to them that he was interested in the claim, he could not 
remain, and only desired them to treat it as they would that of any other. After 
he left, it was considered and allowed at $199,700. The notion that the $28,000 received 
from the Government was forgotten or/suppressed in making up the other claim is the 
strangest of all the strange fancies which this cause has engendered. The claim embrac- 
ed nothing which had been delivered to the Government, and therefore credited nothing 
which had been, or was to be, received from the Government. Has it ever occurred to 
my learned friends, that if this claim was improperly allowed, the Supervisors and 
the Comptroller of the city are equally culpable with the Mayor ? They, and especi- 
ally the Comptroller, are the guardians of the city treasury. The Mayor had merely 
a suspensive vote. The Supervisors' Committee were only advisory. The Comptroller 
was bound to examine every claim himself. He did so examine, and in many instances, 
reduced or refused claims allowed by the Supervisors. The Corporation Counsel was also 
bound to be vigilant. He was paid for his vigilance. His close relations with the defendant 
are well known. The defendant was then at open enmity with the Mayor. If there was any- 
thing wrong in the claim, why did the Counsel to the Corporation connive at it? The de- 
fendant's libel, though a thrust at the plaintiff, is reallj- a stab at the Supervisors, the 
City Comptroller, and the City Counsel. But there was nothing wrong in the claim, and 
that is the reason why it was passed. I will here take occasion to say that, in the 
opinion of my associate and myself, the claim presented was not only a legal and just 
one, but considerably less than it might have been made. The profits that would have 
accrued from the remaining carbines which the Government contract called for, from 
the 2,946 not yet forged, were, as we think, properl}' chargeable. The defendant has 
endeavored to prove that the carbines might have been duplicated in the establishment 
at from $14 to $16 48. Taking the latter as the true cost, and adding the tariff to the 
patentee, $3 50, the profit on each of the 2,946 would have been $4 72, which would 
have amounted on the whole to $13,905 12. Mr. Keene testified that there were in the 
building, materials for 200 to 300 carbines, beyond those charged for. There might, 

therefore, have been justly added to the $207,062 71 

SO per cent, advance in price on the tools and machinery 29,378 90 

Materials for 250 carbines at half price 6,175 00 

Prospective profits on 2,946 carbines 13,905 12 

Total $256,521 73 

Interest from July 13 to October 23, 1863 5,087 68 

Total $261,609 41 

Amount actually received 199,700 00 

Total $61,909 41 



/¥<i, 



141 

These, gentlemen, are^onr views and the views of our client respecting this claim. 
We are confident that he got, not too mnch, but too little ; that he has not received 
adequate indemnification for the loss inflicted upon him by the rioters. The city has 
never complained that too much was paid. It is Weed, an interloper, not one of our 
citizens, who thrusts himself in between the plaintiff and the city, saying to the Comp- 
troller and Supervisors, "You were faithless guardians of the County Treasury." If 
the plaintiff's arguments convince dny of thess gentlemen, let them act upon them — we 
are ready to accept the challenge. My client authorizes me to say that if the city will 
reinstate the suit of Mr. Farlee, and go to trial upon its merits, and pay any excess of 
the money over the amount received, he will stipulate, with suflBcient sureties, to return 
any deficiency. Here is a chance for you, gentlemen. The Corporation Comptroller is 
the plaintiff's political opponent, the Corporation Counsel is the defendant's particular 
friend. Persuade them, if you can, to abide by this test ; tender them your services to 
prove their case. Do this, or cease your clamor. I have thus gone step by step over 
the charges of this libel in respect to the claim for the destruction of the armory, and 
over everything which the defendant has been able to gather from all quarters, credita- 
ble and discreditable, against its accuracy, and everything which the defendant or his 
counsel have been able to say, or to insinuate against it, and I submit to you, that every 
statement in the libel is shown to be a gross, malignant falsehood, and that the whole 
fabric created during these long months to justify it has been scattered in pieces. Hav- 
ing thus disposed of the libel concerning the armory, I come to that concerning the 
office of Surveyor of the Port of New York. The complaint alleges the meaning of the 
libel to be " that the plaintiff had corruptly sold the office of the Surveyor of the Port 
of New York, or had received the sum of $10,000 for or on account of the appointment 
of some person to the said office," and this allegation not being denied, must be takea 
to be admitted. If the meaning had not been thus alleged and admitted, it would 
nevertheless have been apparent. The language and the context clearly indi- 
cated that the defendant intended to charge' upon the plaintift the selling of 
the office for $10,000. Counsel reviewed the testimony of McNeil and William- 
son, criticising the three stories told by McNeil, all of which, he stated, were con- 
tradictory, and inconsistent with each other. The only interview pretended to have 
been had with Mr. Opdyke, was one by McNeil, and another by Williamson, each sepa- 
rately. They did not together go to Mr. Opdyke's at any time. McNeil gives three dif- 
ferent accounts of his interview ; Williamson two different accounts of his. McNeil's 
word was not worth a straw. His manner was enough to destroy all confidence in his 
accuracy. He had the craven swagger of a political bully, not the subdued and decor- 
ous manner of a witness under oath. His language is a singular mixture of precision ia 
one expression and looseness in all others. Thus, he is almost always careful when 
speaking of the officer to be appointed, to call him Surveyor of the Port of New York. 
This is the language of the libel, which he seems to have studied. Yet it is not credit- 
able that two men, speaking of this office, should in all instances add the supplementary 
and unnecessary words, " (jfet him, however, out of the port of New York, and he is as 
loose as possible." " You may have it, Charley, if you think it better." And, "I 
think I will." Q. If what? A. If things were arranged to his satisfaction, of course. 
McNeil is con\'icted of falsehood by Williamson. He is asked if Mr. Opdyke did not 
make him an offer of settlement before suit was brought. He answers, "No, Sir-ee." 
Williamson testified that the offer was made to McNeil himself in Williamson's presence, 
McNeil is also contradicted by both Mr. Opdyke and Mr. Andrews in respect to an inter- 
view at Washington. He says he met them there in the winter of 1862, and had a con- 
versation with them about the alleged bargain for the Surveyorship. Both of them tes- 
tify, not only that there was no such conversation, but that they did not meet him in 
Washington at all. We may, therefore, leave McNeil and all his stories aside, as not 
even a makeweight in the scale of evidence. Mr. Williamson's testimony of his inter- 
view with Mr. Opdyke is too vague for any reliance to be placed upon it. He went to 
.Mr. Opdyke's office and said something to him. His language is, "I said that I had 
been to see Andrews about the matter, by his request; that the matter was entirely 
satisfactory ; that I believed Andrews would carry out in good faith what he had pro- 
posed." He cannot recollect a single word used in that conversation. Q. What did 
Mr. Opdyke say i-o that? A. He made no reply that I recollect now. I don't recollect 
that he did make any reply ; he simply acquiesced in it. Now, to convict Mr. Opdyke 
of complicity in any bargain, it is necessary to show that he understood Williamson's 
langnage to relate to such a bargain. Williamson does not testify that he stated the 
terms of a bargain, or that there was a bargain at all about getting Andrews the office. 
Truly Mr. Andrews would not want McNeil to " intercede " for him ; nor would Mr. Op- 
dyke want Williamson as a witness to Mr. Andrews' promise. Again, Mr. Andrews had 
already been announced in the papers as the successful candidate. Then Mr. Andrews 
could have no possible motive to enter into such a bargain. Kven if the bargain were 
made, it was utterly without performance on the part of Mr. Opdyke. 

Counsel having disposed of this part of the libel, the Court adjourned to 10 o'clock 
Tuesday, intimating that the case must positively go to the jury then. 



v'A 



148 . ' 

NINETEENTH DAY. 

TUESDAY, JANUAET 10th, 1865. 

At the opening of the court, Mr. Emott presented his views to his Honor in reference 
to the measures of damage against the city for the carbines destroyed — citing autlior- 
ities to show that the true standard of value was that which ■ was allowed, viz. : thei 
Government price of the carbines, (including profit and patentee's fees,) less the cost 
necessary to finish them. 

The court stated that he did not agree with the counsel for the plaintifi' as to the true 
ground of damages against the city. In this vievr, however, this question was not very 
material in the present action. If a man brings a suit and claims a wrong rule of dam- 
ages, if it does not bear evidence of bad faith, no imputation is to be cast upon him. 
That will be a question for the jury. 

ARGUMENT OF MR. FIELD CONCLUDED. 

Mk. Field resumed : 

The libel in relation to General Fremont is a tissue of falsehoods. The point of it ig 
that Mr. Opdyke worked upon General Fremont's political ambition to deprive him of 
his property. A more wanton, wicked and cruel libel was never published. It is at 
once base, and baseless. The whole transaction between Mr. Opdyke and General 
Fremont wa,s simply a matter of business resulting from a negotiation begun by General 
Fremont, in which he made an offer that was accepted and performed. No political 
consideration entered into it, or was even suggested or surmised. General Fremont 
finding his estate embarrassed, and unavailable, offered one-quarter to capitalists to ex- 
tricate it and him. The debts had been created in defending the title against the Gov- 
ernment and in developing the estate. He had never before been able to get any one 
to agree to take it for less than half. He now offered a quarter to Mr. Stevens, who 
offered it to Mr. Ketchum, who brought in Mr. Opdyke. This is allof Mr. Opdyke'3 
connection with the matter. He received no more thaii he was offered. He performed 
what he promised. The asking of General Fremont to let twenty-five thousand shares 
remain in Mr. Ketchum's name, in trust for him, was only a proper and usual precau- 
tion to keep the stock out of the market for a limited time, and prevent the control 
of the company from passing into other hands. The counsel has seen fit to allude to 
the present embarrassments of the company. There was nothing about them in the 
evidence, and this is not the place to explain them. If he intended thereby an imputa- 
tion upon the good faith of the capitalists who formed it, an abundant answer is found 
in the dispatch which appears in the evidence, which was transmitted by the principal 
bankers of San Francisco eight days before the formation of the company, containing 
the substance of the report just made by the most eminent mining geologists of Cali- 
fornia, by which it was estimated that a gross monthly product of the estate might be 
counted upon of two hundred thousand dollars in gold at a cost of forty thousand, 
which would give a yearly revenue of $1,920,000 in gold, capable of extinguishing the 
debt in less than a year, and then giving a yearly dividend of over forty per cent, in our 
currency. The defendant attempts to fasten upon Mr. Opdyk« the charge of making a 
Lard bargain with Gen. Fremont when these twenty-five thousand shares were lossed 
from the trust and about to be thrown on the market. The plaintiff was not the trustee 
and had nothing to say about the discharge of the trust. He joined Mr. Hoey in the 
purchase of five thousand shares. There is no evidence that the same number of shares 
could have been sold for a larger price than Mr. Hoey gave, or that Mr. Opdyke made 
anything from the purchase, but whether it was so or not, the purchase was made be- 
tween parties competent to contract, and neither complains of it. The intrusion of 
Weed into the company is a piece with his character ; he was invited by neither of the 
parties, and is equally offensive to both of them. It has pleased the defendant and his 
counsel to drag my name into this controversy. There was for this neither necessity, 
nor excuse. I was not responsible for any act of Mr. Opdyke's, nor was he responsible 
f6r any act of mine. I received nothing from him and he nothing from me. A client 
who wanted, or thought he wanted my advice and assistance, offered me for certain ser- 
vices a certain compensation, amounting in value to one-fiftieth of the estate which was 
to be extricated from the embarrassments with which it was covered all over, and from 
which it might or might not ever be disentangled. The offer was accepted, the services per- 
formed, the compensation paid, and both parties were then, are now, and have ever since 
been satisfied. WhyMr. Weed, or Mr. Evarts, or Mr .Pierrepont need concern themselves with 
iti do not know. One's own business is, in general society, considered enough for one's 
own attention. My friend Pierrepont need not waste his thoughts upon it, for nobody will 
ever make him such an ofi'er, and he would not earn so much were he to live a hundred 
years. My friend Evarts would not accept such an ofier, if it were made. He would 



tell Ms.- clieint that he over-estimated the value ojf hig services ; he eould not accept so 
much for them ; he would be happy to do more work for less pay. He would not take 
a large fee, not he. His honest soul relucts at it, as it relucts at one man helping aur 
other to an ofiSce, upon any understanding, express or implied, that his friend shall 
remember him. Now, I propose, this compromise with him. If he will make oath that 
when he went to Washington to procure the appointment of his friend to a certain lucra- 
tive office in this city, there was no understanding that he should receive the counsel 
■fees which the office could bestow, I will promise not to cross-examine him. If he wUl 
then sit down with me and compare the fees which he has received from the public 
treasury with those which I have received from my private client, I will promise to make 
Ho public inquiry into the amount he has received, and we will both cry quits and be 
even. But to be serious, this inquiry into the fees which my private clients see iit to 
give me is sheer impertinence. Weed knows no better. His education, his associations, 
his habits, his instincts, have taught him no better. My learned brethren, Evarts and 
Pierrepont, however, know better. They have been educated as gentlemen ; they have 
been trained as lawyers; and, although on one occasion during tnis trial Mr. Evarts gave 
it as his opinion, as I understood him, that when a lawyer comes into court he sinks the 
gentleman in the lawyer — an opinion, by the way, which shocked and amazed me when 
it was expressed ; yet I take leave to remind him and his associates that neither as law- 
yer nor gentleman has either of them any concern with my private affairs. Now, gen- 
tlemen of the jury, before I lay it aside, let me read this part of the libel again. 
" More than a year ago. Mayor Opdyke and others reminded General Fremont that when 
a candidate for President in 1856, he was weakened by pecuniary embarrassments." 
This is false. Mr. Opdyke never reminded Gen. Fremont of any such thing. Again: 
" That as his friends intend to run him again, it would be well to put his affairs into bet- 
ter shape." This is false. Nothing of the kind was ever said. Again : " These friends 
formed themselves into a Mariposa Mining Company, &c. But new difficulties arose, 
which, however, were adjusted by the payment by Gen. Fremont of $2,400,000 in Mari- 
posa stock," &c. This also is false. No new difficulties were adjusted ; no new difficul- 
ties had arisen. The first act of General Fremont had been, as his first offer was, to con- 
vey one-fourth of the estate to Mr. Ketchum, and the company wasformed long afterward. 
The libel is false in its whole scope and meaning. It charges extortion from Gen. Fre- 
mont by first working upon his ambition and then leading him into difficulties, all of 
which you have seen is as false as false can be. This is not the^place nor the occasion 
for an eulogy upon Gen. Fremont. The gentlemen may think' it befits their case to 
represent him as a weak and timid man, the easy prey of designing capitalists, and 
afraid to utter his opinions in this hall. It is well one of the counsel said he had never 
seen him before ; for if he had he would not have been wholly ignorant of his character. ■ 
Gen. Fremont evidently thinks that bluster is not a proof of strength, and that the quiet 
denieanor of a gentleman is compatible with the loftiest courage of a soldier. In his 
checkered life he has passed through many vicissitudes. Rightly surnamed the Path- 
finder, he was the first to explore the passes of the mountains of the furthest West. 
Eeturning from Europe to fight the battles of his country, he was the first General to 
beat Stonewall Jackson in fair battle at the East. He sustained the';.contest for the 
Mariposa estate with the same courage and tenacity with which he encountered the 
enemies of his country. He maintained his title and his possession against hostile claim- 
ants and lawless intruders, and, after many years of anxiety and labor, has reaped'from 
it an ample fortune. His name will live in the history of his country so long as the 
country endures. No man will ever cross the plains to our Pacific empire^whether he 
passes with the long caravan of emigi-ants seeking a home in the west, or by that future 
railway which is certain yet to thread the gorges of the mountains — no man will ever 
look down from the Sierra Nevada upon the golden land of California without thinking of 
Fremont. I pass now to a new subject, that of army clothing ; the libels pn this subject 
are as follows : " This man has made more';money by secret partnerships in army cloth 
blankets, clothing aUd gun contracts, than any fifty sharpers, Jew or Gentle, in the City 
■ of New York." And again, "Mr. Opdyke can, if he pleases, enlarge the field of in- 
quiry, so as to embrace * * * the shoddy blankets that were rejected in New York 
and subsequently worked in at Philadelphia . ' ' The meaning attirbuted in the complaint 
is, that Mr. Opdyke "made money unjustly through fraudulent, corrupt or extor- 
tionate contracts with the Government, and that he corruptly and fraudulently procured 
the acceptance of imperfect blankets by some officers of the Government in Philadel- 
phia, after they had been rejected by the Government in New York." This is the real 
meaning of the expressions, the sense in which the defendant used them, the sense in 
which he meant them to be understood. His whole articles are bitter and vindictive. 
He means everything in an unfavorable sense, and intends that it shall be so understood. 
For these aspersions there is not a particle of justffication in the evidence. There were 
never any blankets sold or received at Philadelphia after having, been rejected ia New 
Y-orb. The whole charge in that respect is a pure invention. .There was never any 



160 

contract made Avith the Government which was not fairly made arid fairly executed; 
Nothing of the kind commonly known as shoddy was ever received by the Government 
or offered to it. The Spaulding cloth was of substantial material ; the only objection to 
it was the difficulty of coloring some of it; but the spotted parts were left out in the 
making up, and the garments delivered to the quartermaster and accepted by the in- 
spectors, were good both in material and color. But, says the defendant's counsel with 
loud voice and great emphasis, here is a public man. Mayor of a city, interested in con- 
tracts for the supply of the army. Is that a fault? The army must be supplied. Can- 
not honest men engage in supplying it ? Must Weed and his friends have a monopoly of 
the business ? If that be so. Heaven help the country ? When complaint was made to 
Luther that secular airs were played in the churches, the great reformer replied that 
the devil must not have all the good music. So we modestly ask, must the devil alone 
supply the army ? Must our brave soldiers be clothed and fed by thieves? No, no, no. 
The furnishing of supplies to the army and navy on contracts fairly obtained and fairly 
executed is an honest and patriotic act. Parrott, and Ames, and Ericsson, and Stew- 
art, and Sturges are helpers of their country as truly as he who leads a battalion, or 
digs in the trench, or mounts the parapet in a storm of fire and leaden hail. The Mayor 
of a city, however, ought not to do it, say the gentlemen. Why not? If it be a good 
thing, and patriotic, why should he refrain from it? If he has something which the 
Government wants, ought he to refuse it, or ought he to resign before he lets the Gov- 
ernment have it ? Must he give up private business when he takes a public office ! I3 
it not of the vices of our times that so many of those who hold office 
have no other business, no other means of livelihood? They live on the pub- 
lic. The offices are their patrimony ; their trade is politics ; their traffic is in public em- 
ployments. Some of the purest and best of our mayors have thought their public office 
and their private business quite compatible. Mr. Havemeyer did not abandon his sugar 
refinery ; Mr. Westervelt did not give up his shipyard ; . Mr. Tieman did not assign over 
his paint factory. If a successful merchant be chosen Mayor for two years, must hia 
firm be dissolved, or must it pursue a different line of business from what it would have 
pursued if he had not been elected ? But I have said enough on this subject, and I will 
say no more lest I weary you. Such, gentlemen, are the facts in relation to these 
charges. The charges themselves are gross ; sucti as no man could rest under without 
a stain upon his name. What was the plaintiff to do? Should he inflict personal chas- 
tisement ? That is the first impulse of a wronged man, just as it was the first impulse of 
my client, when the opening counsel of the defendant charged him with a lie in the Har- 
ris letter, to cleave him instantly to the floor. But the law forbade. The judge, what- 
ever he thought of the provocation or the vengeance, would have been obliged to pun- 
ish it. So, if the plaintiff" or his friends had sought the defendant and broken every bone 
in his body, they would have done to the defendant no wrong, but they would have vio- 
lated the law and wronged society. A civilized community cannot maintain itself if it 
allows private vengeance for private wrongs. Personal revenge, was, therefore, not to 
be thought of. What, then, I repeat, was to be done? Weuld you have the plaintiff" 
content himself with a reply in the newspapers? That is palpably insufficient. There 
is a Chinese proverb that a lie will travel round the world while truth is putting on its 
boots. You cannot follow the libel with a contradiction into all the newspapers in which 
it is published. Many persons will read one and not see the other. Some will believe 
one and disbelieve the other. A contradiction is, therefore, 'insufficient. What then, I 
repeat again, was the plaintiffto do ? He was constrained to take the redress which the 
law gave him, such as it, was whether it was perfect or imperfect. That was the dictate 
of the law— our law, your law, the law of the land. He had two courses open to him, one 
to prefer an indictment, the other to bring a civil action. His first design was to do both. 
There were reasons, however, which made him finally decide, in the first instance, for 
the latter. One was, that in a criminal prosecution the defendant could not be a wit- 
ness, and a clamor might be raised that he wished to shut the defendant's mouth. There 
are other reasons, which any one acquainted with our political historj^. and who has 
seen what has been going on in this court-room, will readily understand. The civil action 
is iindoubtedly an imperfect remedy ; but it is the best the law affords; The only re- 
paration which it offers to the plaintiff, the only punishment it threatens to the defen- 
dant, is in pecuniary damages. If, after passing upon the truth or falsehood of the 
charges, the jury could themselves fix the measure of reparation ; could require the de- 
fendant to publish a recantation, or fasten upon him a stigma that should not be misun- 
derstood, it would be more consonant with the ideas of modern society. But that has 
not been done. The lawgiver has left no other means of reparation than the amount of 
damages. The plaintiff" seeks your verdict, and a large verdict, because that alone will 
mark your sense of the injustice which he has suffered. A small verdict will signify that 
the plaintiff has been wronged, but that it is of little consequence whether he has been 
wronged or not. It is for that reason, and that alone, that he seeks a verdict which the 
defendant shall feel. The defendant's counsel tells you it is avarice that prompts this 



/¥ '$' 



161 

demand. It is not avarice ; but a proper self-respect. They thought it very funny that 
he should give it to a public charity. The fun was probably in the idea that any of 
Weed's money should go to a public charity. "We tell you that not a dollar of the reco- 
very shall be used for any private purpose. Seeing, therefore, that you can only ex- 
press your sense of the wrong done to the plaintiff by the amount of the verdict, the ques- 
tion arises, what are the reasons or principles by which that should be determined. It 
is not the pecuniary loss which the plaintiff may have sustained by which you are to 
judge. That may not be known to the plaintiff himself; it may be incapable of proof. 
It is compensation for the disquietude which the plaiatiff has undergone, his mental 
suffering, the lessening of him in the public esteem, and the injurious effect it may have 
upon his social and political relations. The defence which has been set up is, as all the au- 
thorities agree, an aggravation of the original libel. The record of an attempted justifica- 
tion is the clearest evidence of malice. But if that little silent piece of paper contains 
such evidence, how much more does the oral slander of counsel contain it. Both the 
counsel have indulged in it, far beyond their duty or their privilege ; but the opening 
speech of the junior counsel was so gross in its language, so monstrous in its perver- 
sions, so outrageous in its abuse, that, for the sake of the defendant, whom it insulted; 
for the sake of the court, which it contemned ; for the sake of the community, which it 
offended, it ought to be visited by your displeasure. The profession of the law is one 
of the noblest that can employ the faculties of man. To be a defence to the weak, a 
speaker for the ignorant, an adviser to the doubtful, a bulwark against power, an in* 
.terpreter of the laws, a helper to justice, is an office and a function, for having which 
any man may feel himself exalted. The profession is rich to overflowing in its 
histories and its traditions. The greatest men of all ages have illustrated its 
annals. Orators, philosophers, statesmen, have reaped its emoluments and borne 
its honors. The judiciary of every free country is recruited from its ranks. The 
Chief-Justice of the United States is second only to the President; the Lord Chan* 
cellor of England takes precedence of all the nobles — such is our profession. 
But if it is to be perverted as it has been perverted here, it must lose its 
character and its influence. If there be many whom a fee can induce to rise in 
a court of justice, and under cover of the privilege, vilify a party, as my client 
has been vilified outside of the evidence and the issue, then I can only say that the 
name of lawyer will soon be a by-word and a hissing, and will come to be ac- 
counted hostis humani generis— a,n enemy to the human race, fit only to be hooted from 
the world. Who is George Opdyke ? A New York merchant, punctual to all his engage- 
ments, honorable in all his dealings, sensitive to that which is the life of this mercan- 
tile community — mercantile honor ; whom no man reproached, or dared to reproach, till 
he was set upon by thieves. Ask those who have dealt with him. Ask those who have 
lived with him. In private life without a stain, in every relation exemplary, 
whether as son, husband, father, friend, citizen ; in public life devoted to its duties. 
From the time when he took the office of Mayor, he gave it all his days and nights, 
saving only three hours a week to his private business. He defied, resisted, and, to a 
great extent, defeated during his Mayoralty, the robbers about the City Hall. That is 
the secret of their hostility to him. Mr. Purdy tells you that he saved millions to the 
City Treasury. He resisted the measure, passed by the Common Council, for giving, or 
rather wasting three millions for draft exemptions, and defeated it ; he resisted the 
court-house jobs and the Fort Gansevoort job, as long as resistance was possible. Is 
Buch a man to be hunted down? Who is Thurlow Weed ? I should not have dragged his 
character into this trial, if his counsel had not done it. Being here he must be treated 
as he deserves. I acquiesce, if I do not dissent. I am bound therefore to say that he is, 
in my opinion, and in that, I believe, of most of his countrymen, a leader of that band 
of profligate men who surround and disgrace Congress, the Legislature and the Common 
Council, seeking grants of franchises, lands, offices, and jobs ; corrupting, bribing, sol- 
iciting, misleading: ; living upon the country ; public plunderers. Shall such a man go un- 
punished? Whet is alibeler? He is a man who publishes of another a malicious false- 
hood, tending to injure and degrade him. To talk of such a man as entitled to any im- 
munity by reason of the liberty of the press is to disparage your understanding. The 
liberty of the press, that liberty for which wise and good men struggled for ages, which 
we have so securely obtained as to have enshrined it in our Constitution, is the liberty to 
tell the truth. The liberty to lie was never given, and never intended to be given, and 
never can be given, till society is resolved into its elements. " Thou shalt not bear false 
■witness" is one of the commandments; "Thou shalt not steal'' is another. One may 
just as truly strive for the liberty to steal as the liberty to lie. If character is worth 
anj'thing we must protect it. It is of priceless value. Next to the approval of God 
and your conscience, the greatest incentive to good actions is the approval of your fel- 
low-men. Instead of holding one up to censure for having vindicated his character 
through the law, applaud him for his confidence in himself, his confidence in you, his 
confidence in the laws. And let your verdict be the answer to all the calumnies and all 
the sophistries which during these four weeks have been uttered iu this hall. 



JUDGE MASON'S CHAEGE TO THE JUEY. 
Judge Mason, after a few preliminary remarks to the jury, paying them a deserved 
compliment for their patience and attention to the case, and defining the duty of the jury 
and of the court, spoke of the law applicable in the case. As the law now stands with 
us in this state, the defendant, when arraigned for a libel, may give the truth in justi- 
fication; and if he sustains before the court and jury the truth of the libel, he stands 
wholly acquitted of the publication, without stopping to inquire into his motives, 
whether the truth was published with good motives and for justifiable ends or not. A 
different rule obtains where the prosecution is Iby indictment. The libel gives a civil 
action ; it also gives an indictment. The latter is given upon the idea that libelous pub- 
lications tend to a breach of the peace, and therefore concern the public interest, and 
that the libeler may be punished by indictment, in behalf of the people, to preserve the 
public peace. When the trial comes up on an indictment, then the defendant has to 
establish not only the truth of the libel, but he is to satisfy the jury, before whom it is 
tried, that he published that truth for good motives and justifiable ends. There may be 
cases where a man may publish the literal truth in a libel, and yet he should be punished 
just as severely as though he had justified a falsehood, for in some cases which can be 
put, the aggravations would be even greater. A man may publish through the public 
press some secret physical infirmity of his neighbor, unknown to the world, which will 
wound the feelings and sting to the quick the sensibilities of the man who is libeled, 
and yet the libels may all be true. In this, a civil action for damages, the law allowa 
the defendant to give in evidence the truth of the libel, and if he establishes that truth, 
•then he stands fully acquitted. Before proceeding to^the case, allow me to state another 
particulag, in reference to which there has been some controversy— in reference to' 
which the laws of this state stand in direct collision with the courts in England at this 
day. If I were presiding in a court in England, I should be obliged to say to you : 
Gentlemen, the law makes you the judges, in this civil action, both of the law and 
the fact, so as to determine the question whether the article is libelous or 
not. They hold the rule there that the judge must' charge the jury what 
constitutes a libel, and leave it to the jury tp say whether this is a libel. Well, 
they have had some rich experience under this new rule in England, which shows 
the folly of the rule itself. A case came before a court there, and the judge elicited 
the law of libel correctly, and the jury retired and brought in their verdict. ITien came 
a rule to show cause why a new trial should not be had, for the jury had found that not 
to be a libel which was a libel. The case was argued, and counsel conceded that the 
judge had charged the law of libel correctly ; but the jury, who, under the law as ad- 
ministered in England, had a right to say whether the matter charged was a libel or not, 
had found that to be no libel which was a libel, and the rule was made absolute, and the 
verdict set aside. Not a year from that time, came another case from the Court of Ex- 
chequer, on a rule to show cause why a verdict should not be set aside, and there it was 
conceded that the judge had charged the law of libel correctly, but the jury had, for- 
sooth, found that to be a libel wMch was in law no libel, the very converse of the first 
case. Well, the result of it all was, that the court, after the jury had rendered their 
verdict, pronounced it a libel, granted the rule absolute, and set aside the verdict, hold- 
ing that the jury had held that to be a libel which was no libel. The consequences which 
have flowed from that in the courts of England within the last few years, show the ab- 
surdity of the rule. It is my duty to state to you now, gentlemen, what our rule is in 
this State. If I understand it, it is a sound rule, founded in practical wisdom, and plain, 
practical common sense ; and here, gentlemen, it brings me to a part in this case where 
I should be very careful, and you should be very observant in looking to the precise 
/ duties which belong to me, and those which belong to you. It is my right, nay, it is 
my duty, to define to you wherein I may say to you this article is libelous, and whereia 
I may say to you there is a question left here for you to determine whether it is or not. 
Now the rule is this: where the charge, as published, leaves no ground for doubt, where 
there is nothing left to interpret, as if I should say, "Mr. Blatchford, in cool blood, rose in 
court, drew his pistol, and shot Mr.Weed— murdered him," and published that through the 
papers in the morning, and it should come out as false, and I should be sued for libel, would 
itnotbemere nonsense for any judge who should sit to try that case forlibel, when there 
was a plain imputation of murder — no doubt about it — would it not be mere nonsense for a 
judge to define what constitutes a :libel, and leave the question for the jury, whether the 
charge is libelous or not ? No ; our rule is that the judge must say that the article is libelous 
as a matter of law, or that it is a question to be left for the interpretation of the jury. When 
the publication is susceptible of two constructions, then the judge must leave it to the jury 
to say which of the two constructions is intended by the article. In this connection, gen- 
tlemen, it is my duty to advise you with regard to another rule, and that is that when a 
publication is susceptible of two constructions, one of which would give an innocent 
meaning and the other would impute libel, or give them a criminal meaning, and where 
it is as well susceptible of the one construction as the other, then it is your duty to give 
it the more lenient construction ; because courts and juries are not to presume malice in 



/¥? 



153 

the publication, unless it is necessarily and clearly inferred from the language employed,, 
the same as that they are to impute innocency of conduct in all cases, unless they are 
obliged by the evidence to impute guilt. In further reference to the duties which per- 
tain to the court, and those which pertain to you, I think I can illustrate more to your 
understanding the rule which I design to lay down by calling your attention to thia 
libel. The first matter charged in this complaint for libel is the following : " This man 
has made more money by secret partnerships in army cloth, blankets, clothing, and gun 
contracts, than any fifty sharpers, Jew or Gentile, in the city of New York." Now, 
that is not so clear that I have a right to say to you that it is libelous. That is a case 
where it belongs to you to put a construction upon the language, and say whether or 
not you will apply the construction Judge Pierrepont and Sir. Evarts place upon it, or 
give it the construction claimed by the other side. They contend that Mr. Weed in- 
tended to charge that this man had made this money dishonestly, and as sharpers make 
their money. Now, there is good sense in leaving this to a jury, instead of to the court, 
for it is to be interpreted as these words are understood in common parlance among 
men — not by any technical rule of law. It will be for you, therefore, to take this arti- 
cle and say whether it is its intention to impute to Mr. Opdyke dishonest or sharp 
practices, and the one construction or the other which you put upon it 
determines whether it is or is not a libel. This brings me to the point in my 
charge where I should define to you what constitutes a libel. A libel is a ma- 
licious defamatory publication of another, calculating to hold him up to dis- 
grace, to contempt, or even to ridiculfe. It is not necessary that a charge of crime or 
criminal offence should be made— which is the distinction between written and verbal 
slander. Any publication of a man that holds him up to ridicule or contempt — that has 
the effect to defame him — to lessen his character and fair fame — is a libel. Now, I 
ought to say that when an article is found by the jury to contain a libel, there are cer- 
tain legal imputations which immediately follow. One is, that the law presumes it to 
be false ; presumes thnt the defendant has made a libelous accusation falsely ; it also 
assumes and imputes another thing. It infers damages to flow from it without any proof 
at all. The burden of proof, therefore, is not upon the plaintiff to show that it is false, 
but is upon the defendant to show the libel to be true. I will, in the next place, gen- 
tlemen, call your attention to the balance of this alleged libel. (The Judge here read 
the libel already published, in relation to the claim against the city.) The plaintiff's 
counsel claims that this allegation charges upon Mr. Opdyke the making up of an un- 
founded claim against the Corporation of New York for the loss of this gun-factory and 
its machinery ; that it imputes to him the making up of this claim dishonestly, and the 
working it through by dishonest means, and getting it allowed by dishonest practices of 
his own. It, therefore, presents for your consideration the question in regard to the 
claim; in the first ijlace, whether the claim itself is dishonestly made up, and nest, 
whether there was in the making up and the carrying through of this claim for this gun- 
factory, a swindle, a fraud, a wrong practised upon the city. This is a question which 
belongs to you to decide. The defendant's claim is that they have full}' justified this 
part of the libel, even up to the point that should satisfy you that Mr. Opdyke did, as 
Mr. Gibbs, the inventor of this carbine, said, commit a great swindle against the Cor- 
poration in making up this claim against the city. They base this upon the allegation 
that here was a wrong rule of damages, that this claim was made up upon a claim 
founded upon a rule of damages illegal and unsustained in law, and therefore they 
were justified in making this pablication. As I understand this act giving damages to 
the owner of property destroyed by mob, it gives an action against the Corpora- 
tion for all the damages sustained, and thus it is a mere act of indemnity fur- 
nishing them indemnity for the loss of their property, and nothing more. Now, 
when we come to the precise rule by which the question of damages shall be 
ascertained, we find the sides in this case traveling widely different roads. Mr. Op- 
dyke, in making up the claim, travels one road, and Mr. Orison Blunt, as I understand 
him, representing the Board of Supervisors, when he' came to investigate the claim, 
adopted another rule, and traveled another road to ascertain what the damages were. 
These rulesof damages, many of them, are predicated not so much upon any enlightened 
morals as upon rigid and stern rules, I will give two illustrations : Suppose I convey at 
lot to Mr. Blatchfor3 in this city for $5,000 and covenant to wa,rrant and insure that title 
to him, giving him the title, promising to warrant and defend him in that title and in the 
possession of it, and he puts up a dwelling worth $30,000. Suppose ten years hence the 
title is proved false, and some one comes and ejects Mr. Blatchford fromhis house and lot. 
He turns round and sues me upon the covenant, and claims that I should pay him the 
$30,000 he has lost upon the house, and the $5,000 he paid me upon the lot. No, say 
the courts, Mr. Blatchford, you can only recover the $5,000, with interest. Men would say 
there was not much good sense in that, but it was established upon the idea that in the 
early settlement of the city a man might sell a piece of land for $200 and in course of time 
the building upon it might be worth fifty millions, and no man's estate could meet the 
burden of damage arising out of a proof of false title in such a case. Suppose Mr. Weed 



164 

contracts with me to sell me a horse for $500, and I immediately make a written con* 
tract to sell the horso to Mr. Blatchford for $1,000. Mr. Blatchford is a responsible man, 
and has his money ready in the bank to pay me, and there is no doubt but on takiog the 
horse I can deliver it over to Mr. Blatchford, and receive the money. But to-morrow, 
Mr. Weed says, Judge Mason, I cannot let you have that horse. Well, I sue Mr. Weed for 
violating his contract, and I say I should have had of you a thousand dollars from Mr. 
Blatchford for the horse, so I will have the $500 that I should have made out. But the 
courts say. No, you cannot recover it; y-^u can only recover what you can prove the 
horse to be actually worth by. witnesses upon the stand. There are some men that 
tfonld say that the horse was worth a thousand dollars in hand to me because I had 
a valid contract with Mr. Blatchford, but the law won't allow me to take that. 
Now I do not understand, gentlemen, that in this claim against the city Mr. 
Opdyke had a right to put these guns in at the contract price. If he has proved, aa 
is claimed by Mr. Keene and Mr. Brooks, that they were actually worth that piice, that 
puts a different view on the case. The claim was made up by taking these guns in the 
process of manufacture, in the state in which the different parts were in the factory, and 
deducting the cost of completing them from the contract price to be paid by the Govern" 
ment. Now, as I understand the evidence in this case, that claim could not be sustained. 
The price to be paid by the Government, of course, embraced the $3 50 royalty due to 
the inventor when the gun was finished. If an action were here on trial before me to 
recover of the Corporation this claim, I should be obliged to say to you that Mr. Opdyke 
had no valid claim against the Corporation for the royalty on those guns, nor had Mr. 
Brooks any claim upon Mr. Opdyke or Mr. Farlee for the royalty, because by the written 
contract between the parties, the royalty was not due until the time when the guns 
■Were completed. Mr. Brooks himself says this upon the stand here. I do not see, upon 
any claim, therefore, how the $21,000 for royalty could have been made as a legal claim 
against the corporation. It is competent here to offer evidence as to the real value, and 
I do not think that a true standard value would be merely what the different parts, in 
process of manufacture, sold separately, would bring in the market. Now, gentlemen, 
I have said enough in regard to this branch of the case. As I understand the evidence 
in the case, it appears that when this claim was presented in this form to the committee, 
Mr. Blunt did not adopt the theory at all, but resorted to another, and certainly one 
much more dangerous and one altogether wrong; and that was, to ascertain the whole 
outlay in this establishment, or what it had cost Mr. Opdyke and those concerned in 
getting up the factory, in machinery and tools, and going through the whole cost of 
constructing these guns ; and when he arrived at the fact that the outlay exceeded in 
extent the claim, he says he was satisfied the claim was just, and allowed it. That wa3 
certainly more Wrong than the other basis ; but it only shows that laynien are not al- 
ways safe judges of the rules of law, in determining such questions. Now, I ought to 
say to you, that although the defendant may have succeeded in showing you that 
Mr. Opdyke did, on this claim against the Corporation, get a larger sum than 
he was entitled to, and that a wrong rule of damages was adopted (as I think 
there was) in making up_ this claim; jet it does not follow that Mr. Opdyke was 
dishonest in that. This libel must be ,iustified as broadly as it was made, and liberally 
in the sense in which it is charged; and if it charges Mr. Opdyke with fraudulently 
making up a claim against the Corporation— having a swindle in it — performing that 
■which a swindler would do — then the claim must be justified as broadly; and before 
this branch of the libel is justified, you must come to the point of finding tliat this claim 
was made up dishonestly by Mr. Opdyke, and that he believed, when he adopted the 
rule suggested by Mr. .Tones, and carried out by Mr. Keene, in making up the claim, it 
Avas wrong and would result in bringing a larger claim against the Corporation than it 
was liable to him for. Triat is the question for you to determine — whether you believe 
Mr. Opdyke, in presenting this claim upon this rule of damages, knew that he was doing- 
a wrong, and presenting a fraudulent claim. You are to determine it in the light of all 
the evidence. You should bear in mind that Mr. Jones swore he thought it was an 
honest way of making up the claim ; that Mr. Keene swears he regards it a just mode ;. 
that Mr. Opdyke swears the same thing. The other side rely upon the fact, as they 
contend, that it was not communicated to the committee fully, the basis upon which the 
claim was made. Upon that, also, you have the evidence. There is another part of 
the libel to which we now come, where it is my duty to decide, and not yours; and 
that is where Mr. Opdyke is charged with being an ex-officio member of the Auditing 
Committee ; that he sat on the committee auditing this claim, concealing the fact that he 
was the principal party interested; and by that means carried this swindle through, j 
have no hesitation in saying that that which is the most serious part of all these 
charges, as I regard it, is libelous. I do not think there is any doubt about what it 
means, and I do not think there is anything left to interpretation in regard to it. 
Then it is for you to say whether it is justified by the evidence in the c&se. If 
there be no dispute on the evidence that it is not justified, then it is my 
duty to gay to you, you must find the charge undefended. Now, the first part of 



/i 



155 



it, I suppose, is wholly untrue. The Mayor, by virtue of his oflBce, is not a 
member of this committee. Itis very clear, dejMre, he was not a member. But if you 
find he was a member of the committee, de facto, then I think that branch of the libel 
may be justified. Mr. Purdy says that the Mayor and Comptroller were not members 
of the Committee, biit were sent for frequently, so that they might understand the claims 
which were passed upon, and it would seem that on the claim of Mr. Wakeman both the 
Mayor and Comptroller voted. That is the only instance, so far as this case is con- 
cerned, in which they are shown to have acted. Did Mr. Opdyke act on the claim for 
this factory before the committee ? I understand the evidence to be all one way — he 
did not. There is no doubt about that. All the witnesses agree that he did not aid in 
auditing that claim. Well, did he conceal from the Board of Supervisors the fact that 
he was interested in that claim? I think not ; and I have looked carefully through the 
notes of testimony. [The court reviewed the testimon;^ on this subject, and added] ; I 
think, gentlemen, you will find that this part of the libel which charges Mr. Opdyke 
with being h member of the committee sitting upon this claim, auditing it, and conceal- 
ing the fact that he was interested in the claim from the Board of Supervisors, is unsus- 
tained by the evidence in the case. I next come to the charge that the plaintiff 
attempted to wrong McNeil, and that " he came to grief, as dishonest men are quite 
likely to do when they undertake to cheat those with whom they are engaged in busi- 
ness." There is an accusation there. Whether it is libelous or not I leave for 
you to say ; and whether it is justified or not, I leave for you to say, with- 
ont any comment upon the evidence. There is a reference there to a designation 
which has not been much commented |on. The writer charges that " Oily Gammon]' 
soon came to grief. Sitting here as a Judge, I cannot say what is meant by that; but if 
Mr. Blatchfoijd should get up here and accuse any brother 'of the bar of being " Oily 
Gammon," I think I should understand pretty well what was meant. I should think he 
referred to the middle member of the firm of Quirk, Gammon &|Snap, whom Mr. Warren 
deagribes in " Ten Thousand a Year," as having a cold, gray eye, who drew business 
from the pollutions of the city, and whose clients were a class of miscreants— who was 
the " very devil at invention." If you, mingling among men, understand the expres- 
sion " Oily Gammon" to convey such an imputation, you will say if Mr. Weed so applied 
it to the plaintiff, and whether he is to be punished for so doing. Next we come to the 
charge of the " sale of the ofiSce of Surveyor of the Port." You, gentlemen, wiU say 
in what sense these words are intended. If the language implies the sale of an ofSce 
outright, it is undoubtedly slanderous ; because it would hold any man in this commu- 
nity up to contempt, disgrace, and infamy, who should sell an office for $10,000. It is 
contended by the defendant's counsel that the language does not mean that, but means 
the selling of Mr. Opdyke's influence to procure the appointment for Mr. Andrews ; and 
that you must put that construction on it, because Mr. Opdyke did not possess the power 
to give the office. You will say, if it was that, whether you would not consider it a dis- 
grace to Mr. Opdyke to do just that thing ; whether he would not be held up to infamy, 
disgrace, and contempt for doing it. If so, then the language is libelous ; and the only 
remaining question is, was it justified? Mr. McNeil swears there was such a bargain 
made between Andrews and Opdyke, and that he was the broker who made it. You 
"tave his testimony and that of Mr. Williamson ; and the testimony of Mr. Andrews, who 
swears unqualifiedly that no such bargain ever took place or was dreamed of by him. 
There is a collision between the witnesses on this point. It is a question for you, and 
if you find the charge libelous, and that it is undefended, that there was not agreement 
to sell this office, you will, of course, give a verdict against Mr. Weed. We now come 
to the next charge in the libel, and that is the conduct of Mr. Opdyke in connection 
with General Fremont and the Mariposa estate. You have heard this matter referred 
to several times by counsel, and it belongs to you, and not to me, to say whether that 
is a libel. You will say whether it imputes to Mr. Opdyke and his associates in that trans- 
action practices fraudulent and overreaching ; or whether, taking it all in all, just as it 
stands, reading it as common-sense men, you think it holds up Mr. Opdyke to infamy, 
disgrace, contempt, and ridicule. It is claimed on the part of the plaintiff that you 
should infer such was the intention, to charge sharp practices and extortion, because 
the article closes up by saying that there were other sharp practices and extortions 
which would make Jews blush, as the writer was informed by the confidential friends of 
Gen. Fremont. You will say how this is ; and you will say, in the next place, whether 
it is justified by anything given in evidence. That branch of the case all rests upon the 
testimony of Gen. Fremont. This carries us through the list of libels in the article 
of the 18th June. There is a brief one on the 25th. " Mr. Gibbs, the carbine patentee, 
says that in the claim submitted to the Supervisors, on which $196,000 was paid, there is 
a large swindle." In regard to that, counsel for the defense read this alleged libel to 
Mr. Gibbs, and inquired, " Did you say that?" Answer — " Yes, I did, I said it to several 
persons." There the investigation stopped. I am requested to charge you that proving 
that Mr. Gibbs said so is not a justification of the libel. I understand the rule to be, as 
stated in the head-note in a case in 1st Wendell: " In an action for libel, the publication 



156 

in a ne\vspaper of a mmor is not justified by the fact that such tnmor existed. The fact 
may be given in evidence in mitigation, but not in justification." Then there is a cliarge 
which I overlooked, as to "shoddy" blankets, that were rejected in ISTew York, and 
subsequently worked in at Philadelphia. It belongs to yoa to say whether that language 
at this day and hour, taking common parlance in its interpretation, means to charge 
upon Mr. Opdyke any dishonest practices in his dealings with the Government for blan- 
kets. Mr. Weed uses the word " shoddy." You may know what that means. It is also 
for you to say what is meant by the expression "working in; " whether it means 
to impute any but honorable means in getting those passed. If it does, you will say 
by your verdict whether there is any evidence in the case that justifies that 
charge. In short, gentlemen, I leave all these libels, their interpretation, construction, 
and the decision of the question whether they do impute a libelous charge against Mr. Op- 
dyke, or not — I leave the whole to you to determine ; with the single exception of the 
one which charges him with being a member of the committee to audit this claim of Mr. 
Farlee, with sitting upon the claim, and concealing the fact that he was largely inter- 
ested, and by that means getting the claim through. That, I charge you, is, in law, a 
libel. I do not myself see anything in the testimony to justify that branch of the case. 
You will take it, and say what damages ought to be awarded, as you will in regard to all 
the alleged libels. The rule is that the defendant must justify as broadly as he charges. 
The law allows Mm to justify any one charge, and if he justifies that he stands so far 
acquitted. If he fails in any one, he fails in that, although he may prevail in regard to 
all the others. On the question of damages, the Court charged that, the libel being 
broad, the law imputes malice, and implies damages to result; and the law says, in ad- 
dition, that the plaintiff should be fully compensated for his actual damages— fully so- 
laced for his wounded feelings. The law also permits the infliction of punitive damages 
by way of punishing the defendant, in order to make an example of him, anc^ deter evil 
doers ; to stay the hand of the libeler. In regard to both these propositions the law has 
no standard, but refers every case to twelve men to say what is right. The plea of justi- 
fication of the libel or of justification of an oral sland6r, wherever it utterly fails, and is 
hot sustained by the proof, may be considered by the jury in aggravation of the damages; 
but if, when-the whole case is developed before the jury, they can discover any mitigat- 
ing circumstances for the publication of the libel, then it may be a mitigation instead of 
an aggravation. 

His Honor committed the case to the jury, impressing upon them its importance and 
the necessity of doing equal and exact justice between the parties, so that they might 
be able to say they had done fully their duty in deciding the case, as he took pleasure 
in saying they had faithfully done their duty in listening to it. He directed them, if they 
agreed, to seal their verdict, and bring it into court in the morning. If they failed to 
agree before 7 o'clock, a supper would be provided for them, and they would see the 
propriety, after so protracted a trial, of spending one night in an earnest effort to come 
to a conclusion. ^ 



TWENTIETH DAY. .ci 

WEDNESDAY, JANUARY llTH, 1865. 
DISAGREEMENT OP THE JURY. 

At the opening of the court this morning, there was a dense crowd, to learn to what 
decision the jury had come; and on hearing that they had been lockediup all night, 
without agreeing, th^ expression was general: "I thought so; I was sure they would 
not agree." ^ 

When brought into court, the jury looked as if they had not suflfereid much from the 
night's confinement. 

The Clerk— Gentlemen of the jury, have you agreed upon your verdict? 

FoEEjiAN — We have not. 

Judge Mason — Are you not able to agree ? 

Foreman — No, sir. 

Judge Mason — Is there no probability of it? 

Foreman — Not the slightest, I think, sir. 

Judge Mason— There is one branch of the case, under my charge, on which I confi- 
dently expected the jury might be able to agree, however they might disagree on the 
rest, for there was but little responsibility left to the jury. As to the charge which was 
imputed to Mr. Opdyke of sitting on the Auditing Committee, I charged you it was libel- 
ous, and that it was undefended. And yet there is a point where your province may 
aUow you not to disagree, even as to this ; that is, barely on the question of damages. 
All the other charges I have nothing to say about. You might disagree in regard to 
them. I should infer, from what your foreman has said, that you are not able to agree. 

Foreman— Such is my understanding, after a conference with my associates on the jury. 

Judge Mason— Gentlemen, you are discharged. 



